Tropik Wood Staff Union v Tropik Wood Industries Ltd [2008] FJAT 2; Award 02 of 2008 (22 January 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 2 OF 2008

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

TROPIK WOOD STAFF UNION

AND

TROPIK WOOD INDUSTRIES LIMITED

Staff Union: Mr J Seniroga
Tropik Wood: Mr J Bale

DECISION

This is a dispute between Tropik Wood Staff Union (the Union) and Tropik Wood Industries Limited (the Employer) concerning the termination of employment of Radike Buresova and Jeke Naivaluwaqa (the Grievors).

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 5A (5) (a) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 11 May 2007 with the following terms of reference:

"- - - for settlement over the termination of employment of Radike Buresova and Jeke Naivaluwaqa on 16 October 2006. The union contends that the terminations were unjust, unfair and wrong and therefore the two workers should be re-instated without loss of pay and benefits."

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 29 June and the Union did so on 6 July 2007.

The Dispute was fixed for hearing on 27 August 2007. When the matter was called for hearing, Counsel for the Employer made an application for the hearing date to be vacated due to problems in arranging for the attendance of two witnesses. After hearing from the Union the application was granted on terms that the Employer pay to the Union the sum of $40.00 as costs thrown away within seven days. The Dispute was relisted for mention on 21 September 2007.

The hearing of the Dispute took place from 20 to 22 November 2007 in Suva. The parties presented closing oral submissions on 28 November 2007. Each party called two witnesses to give evidence.

The facts relevant to the Dispute can be stated briefly. Mr Buresova (Grievor 1) commenced employment with the Employer in early 1992 as a security officer. He was subsequently transferred to the Stores Department and was employed as a storeman in September 2006.

Mr Naivaluwaqa (Grievor 2) commenced employment with the Employer in 1990 as a stores clerk and was then appointed to the position of storeman. He was employed as a storeman in September 2006.

On 13 September 2006 the Employer’s Stores and Workshop Supervisor (Mr Pranil Kumar) wrote an instruction in the Stores Log Book for the attention of all employees in the Stores Department. The relevant entry stated :

"Please issue fuel and oil and stores to contractors what is approved only. No additional supply.

Red Robin – order to be approved by Rajesh".

This entry was handwritten and somewhat difficult to read. The arrangement in the Stores Department at that time was that all instructions were handwritten in the log book. It was the responsibility of each employee to read the log book (on a daily basis and preferably before starting work) to ensure that instructions were followed. Unfortunately there was no system for employees to acknowledge having read instructions nor for noting when such instructions had been read.

The Grievors were alleged to have issued stores to Red Robin between 14 and 16 September 2006 (inclusive), in contravention of the instructions in the log book and standard procedures.

So far as Grievor 1 was concerned, the allegation was that he had issued 220 litres of diesel fuel on 15 September 2006 to Red Robin. The Stores Supervisor addressed a letter dated 18 September 2006 to Grievor 1 concerning the allegation in the following terms:

"On 15 September 2006 you had issued 220 litres of diesel fuel to Red Robin. There was no official order from Red Robin. The customer’s signature acknowledging receipt of the diesel fuel is not done on S I S.

The above issues were done to Red Robin despite to my instructions stipulated in stores log book. I will pursue this matter for further investigation and will recommend instituting appropriate disciplinary actions in this matter."

This letter appeared to be raising three issues. First, there was no official order. Secondly, there was no signature on the appropriate document acknowledging receipt. Thirdly, the issue of the fuel contravened the instructions in the log book in that the issue to Red Robin was not approved by Rajesh.

A letter dated 18 September 2006 from the Stores Supervisor was also addressed to Grievor 2 concerning the allegations against him:

"On 14 September 2006 you had issued 180 litres of diesel fuel to Red Robin. The accounts department did not approve the order. The issue took place after the normal time allocated to contractors.

Furthermore, on 16 September 2006 you had supplied 304 litres of diesel 10 x 20 litres HLP 46 oil additional to Lolo Forest Company Limited order 42832. This order was specifically for Lololo Forest Co. Ltd initial requirements.

The Operation Manager Mr Senibau has indicated that Lololo Forest Co Ltd is not responsible to account for the payments for the items supplied to Red Robin. Red Robin has very low log productions and these stores recovery is not possible.

The above issues were done to Red Robin despite to my instructions stipulated in stores logbook. I will pursue this matter for further investigation and will recommend instituting disciplinary actions in this matter."

This letter appeared to raise a number of issues. First, there was the unauthorized issue of diesel to Red Robin. Secondly, that issue occurred outside of the time allocated to contractors. Thirdly, there was an issue of additional stores to Lololo Forest Company Limited.

Although the Stores Supervisor signed these letters, he was not, in his evidence to the Tribunal, able to say how the letters were delivered to the Grievors. The Human Resources Manager stated that she had been given copies of the letters by Mr D Mani (General Manager Finance and Administration). It would appear that the Stores Supervisor had given copies to Mr Mani since the Stores Department came under his supervision.

It was not clear to the Tribunal when the Grievors received these letters and nor was it clear by whom they were delivered nor where they were delivered.
It would appear that they had been written sometime in the afternoon of 18 September 2006.

Mr Mani instructed the Human Resources Manager (Ms Nasau Werekoro) to investigate the matters referred to in the letters.

The Human Resources Manager gave evidence that after Mr Mani had spoken with her, she met with the Stores Supervisor to discuss the matter.

She then perused the Collective agreement and the Company Rules. A further discussion took place with Mr Mani who instructed her to write to the Grievors, In a memorandum dated 19 September 2006 the Human Resources Manager advised Grievor 1 that :

"Management has been informed that you have committed the following disciplinary offences under the 1997 Staff Union Collective Agreement and the Company Rules.

It is alleged that on 15 September 2006 in breach of the Collective Agreement and Company Rules you carried out the following breaches :

1. Issued 220 litres of diesel fuel to Red Robin without any official order.

2. Ignoring the Stores Supervisor’s instructions in the Log Book relating to issues to Contractors.

In accordance with clause 11.3 (a) (ii), (c) of the Collective Agreement you are hereby notified of the above allegations.

In view of the seriousness of these allegations against you, Management has decided that you be issued with leave without pay with immediate effect pending the completion of an internal investigation into the allegation against you and the making of a final decision thereon.

While on leave without pay you are not to enter the Company premises except on official business with the Company and you are hereby advised not to interfere with any witness or any evidence relating to the allegations against you."

The memorandum of the same date to Grievor 2 was in similar terms except for the allegations which were stated as:

" - - -

It is alleged that on 14 September 2006 in breach of the Collective Agreement and Company Rules you carried out the following breaches. HHe

1. Issued 180 litres of diesel fuel to Red Robin on unauthorized order.

2. Issued the same 180 litres of diesel fuel to Red Robin after normal time allocated to Contractors.

It is further alleged that on 16 September 2006 you once again carried out the following breaches:

3. Issued 340 litres of diesel and 10 x 20 litres HLP 46 oil to Red Robin without any order

4. Falsified Company record for the above issue by using the order number (42832) which is specifically for items other than those issues to Red Robin.

5. On both occasions (14 and 15th) ignoring the Stores Supervisor’s instructions in the Log Book relating to issues to Contractors."

The Union and the Employer then exchanged correspondence in relation to the decision to suspend the Grievors.

By memorandum dated 22 September 2006 the Employer advised the Union’s General Secretary that:

"Your Union’s participation is required for an investigation the allegations for serious misconduct against your members Dike Buresova and Jeke Naivaluwaqa.

This will be conducted on Tuesday 26 September 2006 at 2.00pm. in the Main Conference Room.

Appreciate if your representatives could be here on time".

It would appear that this memorandum also served as notice to the Grievors that they were required to attend for a disciplinary hearing on 26 September 2006. There was no evidence before the Tribunal that the Grievors had been personally informed about the disciplinary hearing.

A disciplinary hearing took place on 26 September 2006. The panel consisted of the Human Resources Manager who chaired the meeting together with Seremaia Driu (Site Manager) and Pranil Kumar (Stores Supervisor). There were two union representatives in attendance (Edward Kumar and Mario Feausi) together with the two Grievors.

The hearing was conducted by each Grievor being asked a series of prepared written questions. The three panel members each had a copy of the questions and made written notes of the answers given orally by the Grievors.

Dealing first with Grievor 1, the written question sheet indicated that he was alleged to have committed three offences. However in the suspension letter, Grievor 1 was officially advised that it was alleged that he had committed two breaches. Those two breaches related to issuing fuel to Red Robin without an official order and to ignoring the Stores Supervisor’s instructions in the Log Book relating to issues to contractors. These are the alleged breaches which Grievor 1 and the Union expected to be dealt with at the hearing. The third offence relating to incomplete documentation had not been referred to in the suspension letter. Whatever may have been stated in the letter dated 18 September 2006 from the Stores Supervisor, Grievor 1 was entitled to assume that the memorandum dated 19 September 2006 from the Human Resources Manager accurately stated the position in relation to the matters alleged against him.

Following the disciplinary hearing, the Human Resources Manager prepared a memorandum dated 26 September 2006 addressed to all five panel members (i.e. the three Employer and the two Union representatives).

The purpose of the memorandum was to provide the panel with a summary of the proceedings for their perusal and signature. All five members of the panel signed the document which then formed the basis of a report which in turn was forwarded to Mr Mani.

First of all the summary of the disciplinary hearing. In relation to the matters alleged against Grievor 1, the summary stated:

"Dike did not plead guilty when the allegations were read out to him. He stated that he was not aware of the Stores Supervisor’s instruction in the Log Book. He also strongly claimed that the diesel issue was to Lolo Forest and that Red Robin (Mosese) was merely collecting it on Lololo’s behalf. However, in the middle of the interview Dike explained that Mosese approached him at the Stores and told him that Lololo Forest needed diesel fuel because of some emergency in the forest. Based on the so called emergency, trust and understanding between Dike and Mosese the fuel was issued. Mosese then rushed off to attend to the emergency on the understanding that he would bring the Order by 6.00pm on the same day. In terms of the spaces left blank in the SIS form Dike explained that he was going to fill in the Order number later on once he received the Order from Mosese. At the same time Mosese would also sign in the "Received By" blank space.

A letter from Lololo Forest Company Limited dated 20 September and directed to GM/FA mentioned that the Order for the fuel issued to Mosese was to have come from them. In the letter Lololo Forest claimed that they are responsible for the Order since Mosese’s vehicle is hired under Lololo Forest Company."

The letter to which reference was made in the summary was a letter dated 20 September 2006 on Lololo Forest letterhead paper addressed to the Employer’s General Manager Finance & Administration (Mr Mani). The letter is signed by Mr Semesa Pio Bolobolo whose signature block stated that he was Manager of the Company and more significantly a Director of Fiji Pine Limited which happened to be the "parent company" of the Employer in this Dispute. The letter stated:

"It has been brought to my understanding that management has taken drastic step in disciplining your above employee on the discrepancy found on fuel issue. However after a brief discussion with him (Dike) in my office today, I wish to highlight the point that Dike obliged to the issue of 220 litres of diesel on verbal understanding that Mosese’s (Red Robin) request was that a LPO from Lololo Forest would be issued on Monday 18/9/06 as his vehicle is hired under Lololo Forest.

This letter serves to assure you that Lololo Forest is fully entitled to the settlement of the above issue and at the same time request for the reinstatement of Mr Dike to his post as he has a young family to support. I hope that good sense will prevail as this will not jeopardize his work as well as his livelihood.

I request if you could re look at the matter and will appreciate for assistance rendered and apologize for any inconvenience that we may have caused. If you need further clarification on the matter, please do not hesitate to call me."

In cross-examination the Human Resources Manager stated that so far as the Employer members of the panel were concerned, they attached no weight to the letter as they considered that the writer "was lying". There was no reason given by the Human Resources Manager as to why the Employer did not follow-up any doubts it might have had about the contents of the letter with the writer who was also a Director of the Employer’s parent company.

The Tribunal considered the Employer’s approach to this particular matter as being unsatisfactory. It appeared that the Employer found it more convenient not to pursue its doubts with the writer. There was no reason put forward as to why the writer would lie in writing and put his signature to the lie.

In relation to Grievor 2, the written question sheet indicated that he was alleged to have committed four offences. The suspension letter indicated that there were five offences. The offences as put to Grievor 2 at the commencement of the disciplinary hearing were framed and worded differently. Grievor 2 should have been advised in advance as to what exactly was to be alleged against him. The offences stated in the written questions are confusing and appeared to overlap.

In her summary, the Human Resources Manager stated:

"Jeke pleaded guilty to all the four breaches that were read to him, simply because Kasia had instructed him as there was a cash account open for Red Robin. In answering to the Union’s question Jeke stated that the issue of fuel without an Order to Red Robin was not the first one. He added that previously there had been times when he made similar issues without an order but through telephone instructions from Kasia. Jeke feels that the security personnel should be more vigilant in allowing contractors to Stores to alleviate a repeat of a similar case. Furthermore Jeke said that he has worked under five department heads in Stores and unlike the present one work procedures were strictly adhered to and the leadership was better with previous heads."

It would appear that during the course of the meeting, the Union representatives were permitted to ask questions of the two Grievors but were not given any opportunity to question the Stores Supervisor (Mr P Kumar) who sat on the panel as one of the Employer representatives.

The Union representatives were given the opportunity to mitigate on behalf of the Grievors. The Human Resources Manager noted in her summary that:

"In conclusion the Union representatives strongly requested the immediate re-instatement of both Dike and Jeke. That the offences were committed basically due to slackness in the systems within Stores and leadership is also slack in terms of work procedures. Thus it would be unfair to penalize Dike and Jeke because of that. The Union added that Jeke has served the Company for 14 years showing his commitment by working hard and long hours when needed to. Both Jeke and Dike have worked their best and that they need their jobs back to support their families."

The Human Resources Manager admitted in cross examination that she had not followed up any of the assertions made by Union representatives during the course of the hearing.

In her evidence the Human Resources Manager stated that there were previous disciplinary matters on the file of each Grievor. No evidence was led as to what those matters were. In his closing submissions, Counsel for the Employer expressly stated that the Employer accepted the good record of the Grievors.

By memorandum dated 29 September 2006 the Human Resources Manager presented her report to the General Manager Finance and Administration. It is appropriate to include the substance of the Report:

Discussion

Both officers claimed that they were not aware of the Stores Supervisor’s instruction in the Log Book about issuing fuel, oil and stores to Contractor on approved orders only. According to Dike and Jeke on busy days they would normally attend to pressing duties straight away before reading the Log Book. In other words they would have been aware of their Supervisor’s instruction and instead chose to ignore it and made issues to one of the very person that the instruction was made for. They denied knowledge of the instruction to justify their disobedience. Dike claimed that the fuel issue was actually to Lololo Forest and Red Robin (Mosese) was merely collecting it on Lololo’s behalf. According to Stores personnel never before had Mosese collected issues for Lololo Forest as each always collected their own issues until Dike’s claim. Further during the interview Dike explained that Mosese approached him in Stores and told him that he needed diesel because of an emergency in the forest. Dike added that the fuel issue was made because of the emergency and based on trust and understanding between him and Mosese. The trust and understanding being that Mosese would bring the Order by 6.00pm on the same day then Dike would fill in the spaces left blank in the SIS form. On telephone instructions mentioned by Jeke, Kasia clarified that telephone instructions as has been the practice were only for customers that are in a position to immediately pay their account on the due dates.

A letter from Lololo Forest Company Limited dated 20 September and directed to GM/FA mentioned that the Order for the fuel issued to Mosese was to have come from them. In the letter Lololo Forest claimed that they are responsible for the Order since Mosese’s vehicle is hired under Lololo Forest Company. In other words the letter clearly implied that the fuel was for Mosese’s own use and not for Lololo Forest’s use as claimed by Dike. The explanation in the letter contradicted Dike’s story and clearly the main purpose of the letter is to cover the serious misconduct that Dike had committed. Worst still the mix up and un truths from both Dike and Lololo Forest Company is further confirmed by the fact that even up until today, which is 14 days after Dike issues the fuel to Mosese, Stores is yet to receive the Order either from Mosese or Lololo Forest Company.

Recommendations

Appropriate disciplinary action against Jeke and Dike for committing 7 serious misconducts between them would be the instant termination of their services. Jeke did plead guilty straight away while it was later established during the interview that Dike is equally guilty. They have destroyed the trust which the Company needs especially from officers in Stores amongst other breaches. It is important that all employees see consistency in the Company’s effort to appropriately discipline staff found guilty of committing serious misconducts. Most importantly for the future such deterrent is good for both the Company and employees.

For Management’s consideration and further discussion if necessary. Attached is the investigations report duly signed by the panel."

The Human Resources Manager stated in her evidence that she prepared the final report based on what the panel members had signed up to in the summary of proceedings. She also stated that she did not show the final report to the Union representatives and the Tribunal has inferred from the evidence that she in fact did not show the final report to any of the other panel members. The final report contained conclusions in relation to the facts and culpability which did not appear to have been endorsed by the panel members in the summary.

The Human Resources Manager conceded that she did not make any reference to the work record of either Grievor in the report.

The report was forwarded to the GMAF who discussed the matter with the Chief Executive Officer. It was decided that both Grievors were to be summarily dismissed. The Tribunal has concluded that the final report with its recommendations was the basis upon which management relied in reaching its decision.

Griever 1 was advised by letter dated 16 October 2006 that his employment had been terminated with effect from 19 September 2006 on disciplinary grounds. The letter stated the grounds of the termination as follows:

"The Company has found you guilty of committing the following three (3) serious misconducts as stipulated in the Company Rules and Master Agreement.

1. Failing to carry out lawful instruction given by Stores Supervisor (Rule No.1 of Company Rules) through the issue of 220 litres diesel to Red Robin on 13/09/06.

2. Authorised the removal of Company property without appropriate authority and documentation (Rule No. 4 of Company Rules) in the issue of the 220 litres diesel without an Order.

3. In the course of his duties he makes a willful default in carrying out lawful instructions [Master Agreement, Clause 11.2 (b)] whereby in the SIS form you deliberately left two blank spaces, one for the Order Number and secondly for the Receiver’s signature.

You have been found guilty of all three serious misconducts following an internal investigation that was conducted in the presence of both the Company and Union on 26/09/06. First and foremost you clearly ignored lawful instructions and went ahead to issue 220 litres diesel to the very Contractor that the instructions was meant for. Furthermore the issue was made without an order and as the result of which you deliberately left blank spaces in the SIS form. In fact you lied about having any knowledge of your Supervisor’s instructions as justification for your disobedience. As for your claim that Red Robin was merely collecting diesel on Lololo Forest Company Limited’s behalf it has been gathered that never before had Red Robin collected stores for Lololo Forest. In terms of Lololo Forest’s letter that was dated 20/09/06 their story did not match your story and it was also established that the real purpose of the letter is to cover the serious misconduct that you committed. Similarly today would be 32 days from the date you issued the 220 litres diesel to Red Robin and Stores is yet to receive the order from either Red Robin or Lololo Forest Company Limited."

The termination letter referred to provisions in both the Company Rules and the Collective Agreement. Clause 11.1 of the Agreement provides that any employee who commits a disciplinary offence or a breach of the Company’s Rules is liable to face one or more of the penalties provided in the clause. The penalties available to the Employer are listed in clause 11.4 (b).

The first offence referred to in the termination letter was that Grievor 1 failed to carry out the lawful instruction given by the Stores Supervisor by issuing 220 litres diesel to Red Robin on 13/9/06 contrary to Rule 1 of the Company Rules. It would appear that this date should have read 15/9/06. Rule 1 of the Company Rules stated that failing to carry out lawful instructions given by a Supervisor constituted serious misconduct. The lawful instruction was the handwritten instruction in the log book. That instruction was to the effect that any order received from Red Robin was to be approved by Rajesh. It was not disputed that the stores had been issued to a Mosese without the approval of Rajesh. It was also not disputed that Mosese was a Director of Red Robin.

Grievor 1 offered two explanations for the incident. First, he was not aware of the instruction in the log book. Secondly, it would appear that Mosese gave the impression to Grievor 1 that the diesel was being collected on behalf of another entity by the name of Lololo Forest.

The Tribunal should indicate at the outset that the log book method of passing important instructions to employees which was in place at the time was unsatisfactory. There was no way for the Stores Supervisor to confirm that all employees had read the instructions. The handwriting is extremely difficult to read. Although employees may have been expected to read the log book prior to starting work each shift, there were any number of reasons why that might not have always been possible or practicable.

On the material which was available to the Employer there was no objective reason why Grievor 1’s explanation should not have been considered as a mitigating factor.

The incident had occurred only a very short time after the instruction had been written in the log book and possibly on Grievor 1’s first shift after the entry had been made.

As for the second explanation, this is somewhat supported by the letter from Lololo Forest. The matter should have been investigated before the Employer had reached the rather arbitrary if not insulting conclusion that the substance of the letter was a lie. In the absence of an investigation and some substantive basis for having reached that conclusion, the letter should also have been considered as a mitigating factor.

The second offence referred to in the termination letter was that Grievor 1 had issued the 220 litres of diesel to Red Robin without an Order thereby authorizing the removal of Company property without appropriate authority. This was said to be in contravention of Rule 4 of the Company Rules.

The Tribunal is not satisfied that Rule 4 was the appropriate Rule for this incident. Rule 4 applies when the employee himself is in unauthorized possession of company property or removes company property without appropriate authority.

However the Tribunal does accept that the issue of the diesel without an order contravened the handwritten instruction that there were to be no additional supplies.

The Grievor’s explanation in relation to this matter was also connected to his explanation for the third offence which was that Grievor 1 had made a willful default in carrying lawful instructions by leaving the order number and the
Receiver’s signature blank on the SIS form, contrary to clause 11.2 (b) of the Collective Agreement. Under that clause it is a disciplinary offence for an employee to make willful default in carrying out any lawful instruction given by or with the authority of the Employer. The words "willful default" required that Grievor 1 must have failed to do what he should have done either intentionally or through recklessness.

The Grievor’s explanation that he trusted Mosese to complete the documentation and bring the order later that day at the very least should have been considered as a mitigating factor. Once again, on the material which the Tribunal is satisfied was available to the Employer, there was no evidence that this explanation was properly investigated. It was instead dismissed in what appeared to be an arbitrary manner.

The Tribunal is satisfied that the Employer had reasonable grounds for genuinely and honestly concluding that Grievor 1 had committed the essential elements of the alleged misconduct.

However the Tribunal is not satisfied that the Employer has given any or at least sufficient consideration to the mitigating factors which were known or ought to have been known to the Employer at the time.

Under the circumstances the Tribunal is not satisfied that the penalty of summary dismissal was within the band of penalties which a prudent employer would have considered reasonable.

On the material before the Tribunal, there is no reason why re-instatement should not be considered as the appropriate remedy.

However Grievor 1 should be required to take some responsibility for his misconduct and for any loss suffered by the Employer. As a result, Grievor 1 is to be reinstated from 19 September 2006. He is paid six months wages and the balance is to be regarded as leave without pay.

Grievor 2 was also advised by letter dated 16 October 2006 that his employment had been terminated with effect from 19 September 2006 on disciplinary grounds. The letter stated the grounds of the termination included the issuing stores to Red Robin on 14 and 16 September 2006 without the approval of Rajesh contrary to the instruction in the Log Book. This was stated to be an offence under Rule 1 of the Company Rules for failing to carry out lawful instructions given by a Supervisor.

A further ground stated in the letter was that Grievor 2 had recorded a different Order number for the issue of stores to Red Robin on 16 September thereby falsifying records. This was stated to be an offence under Rule 2 for falsifying Company records, documents etc.

A further ground was that Grievor 2 had issued stores to Red Robin at 6.00pm when company procedure was that no stores were issued to contractors after 4.00pm. This was stated to be an offence under clause 11.2 (a) of the Collective Agreement. This clause is somewhat ambiguous in that it states:

"Every employee commits a disciplinary offence who:

(a) by an unlawful act or omission fails to comply with any official instructions given under the authority of the Company/Employer;"

The Tribunal accepts that Grievor 2 issued the stores to Red Robin after 4.00pm in breach of procedure of which Grievor 2 had or ought to have had knowledge.

However, whilst those actions breached the Company’s procedures it was not in itself an unlawful act which appears to be a requirement in the clause. Perhaps the use of the word "unlawful" should be considered as superfluous.

The final ground stated in the termination letter was that Grievor 2 authorised the removal of company property by Red Robin on 14 and 16 September 2006 without appropriate authority. This was stated to be an offence under Rule 4 of the Company Rules. As stated earlier, the Tribunal considers that this offence has been misconceived by the Employer. The Tribunal is satisfied that Rule 4 applies to a situation where it is alleged that an employee is in unauthorized possession of Company property or removes Company property without appropriate authority and documentation.

Once again Grievor 2 claimed that he was not aware of the instruction in the Log Book. The Tribunal simply notes the comments made earlier in the Award concerning that matter.

Grievor 2 also claimed that his actions were the result of instructions received from Kasia. Although this is referred to in the summary of proceedings prepared by the Human Resources Manager, there is no indication in that document as to what, if any, follow-up questions were asked. In her report the Human Resources Manager appeared to indicate that Kasia did not support Grievor 2’s claims.

However there was no statement from Kasia in the material before the Employer or the Tribunal. On such an important matter it would have been appropriate to have Kasia’s evidence recorded in a statement and, if necessary, cross-examined by Grievor 2 or the union representatives. It is not good enough for the Human Resources Manager simply to include a reference to what was Kasia’s response to her query.

The Tribunal has concluded that even if the allegations amounted to serious misconduct, Grievsor 2’s long service of 16 years in the stores department should have carried sufficient weight for a prudent employer acting reasonably to have concluded that summary dismissal was not within the band of appropriate penalties. The dismissal was not justified and Grievor 2 is also to be re-instated from 19 September 2006. He is to be paid six months wages and the balance is to be treated as leave without pay.

The procedure followed by the Employer in these disciplinary matters was not appropriate. The complainant was the Stores Supervisor. However he was also a member of the Employer’s team on the panel. He should have appeared as a witness and the Grievors or the Union Representatives should have been given the opportunity to question him.

The final report prepared by the Human Resources Manager went much further than the summary of proceedings signed by the Panel. There were conclusions stated in the Final Report which were not supported by any explanation as to how they were reached. The Report verged on being biased against the Grievors. There was no indication that the panel had endorsed the conclusions.

The investigation carried out by the Human Resources Manager was not fair to the Grievors. The letter from Lololo Forest was never taken any further. There was no statement from Kasia.

There was no investigation as to the adequacy and effectiveness of the method used to pass on instructions in the Stores Department.

The Tribunal has no hesitation in concluding that the Grievors were not afforded natural justice in this case. The procedure was unfair, the investigation was inadequate and the final report verged on bias.

Even if the Tribunal had concluded that the dismissals were justified, it would still have considered re-instatement appropriate on the basis that the dismissals were unfair.

AWARD

The summary dismissal of the Grievors was unjustified and unfair.

Both Grievors are to be re-instated with effect from 19 September 2006. They are to be each paid 6 months wages and the balance is to be treated as leave without pay.

DATED at Suva this 22^nd day of January 2008.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL