Suva City Council Staff Association v Suva City Council [2008] FJAT 23; Award 24 of 2008 (19 May 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 24 OF 2008

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

SUVA CITY COUNCIL STAFF ASSOCIATION

AND

SUVA CITY COUNCIL

SCCSA: Mr A Singh
SCC: Ms S Saumatua

DECISION

This is a dispute between Suva City Council Staff Association (the Association) and Suva City Council (the Council) concerning the termination of employment of Ms Reena Narayan (the Grievor).

A trade dispute was reported by the Association on 27 June 2007.

The report was accepted on 19 July 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. There was nothing in the Reference to indicate why it was that the Dispute had not been referred to the Tribunal pursuant to section 5A (5) (a).

The Dispute was referred to the Permanent Arbitrator on 8 November 2007 with the following terms of reference:

"- - - over the termination of employment of Ms Reena Maureen Narayan with effect from 25 May 2007. The Association claims that the termination is unlawful, unjustified and unwarranted and therefore seeks her re-instatement to her substantive position without any loss of pay and benefits from the date of termination".

The Dispute was listed for a preliminary hearing on 20 November 2007. On that day the parties were directed to file preliminary submissions within 21 days and the Dispute was listed for mention on 14 December 2007.

The Association filed its preliminary submissions on 7 December 2007. The Council eventually filed its submissions on 30 January 2008. The Dispute was subsequently relisted by consent for mention on 29 February and 28 March 2008.

The Dispute was listed for hearing on 14 April 2008. On that day the Council applied for the hearing date to be vacated on account of the Council’s advocate becoming indisposed. After hearing the Association, the Tribunal granted the application on terms that the Council pay the sum of $10.00 expenses to the Grievor as costs thrown away or wasted. The parties were also directed to file a signed statement of agreed facts within seven days and the Dispute was listed for mention on 25 April 2008.

A signed Statement of Agreed Facts was filed on 21 April 2008. The parties had indicated that they did not intend to call evidence and as a result a hearing was not required.

The parties then presented closing oral submissions on 29 April 2008.

The signed Statement of Agreed Facts did not contain any factual background to the Dispute. However in paragraph 11 of the Statement the parties have stated that the findings of the High Court in Civil Action No 295 of 2005 were not disputed.

The High Court action had been commenced by the Grievor as Plaintiff claiming damages against the Council as Defendant in respect of an injury suffered when she fell over a telephone wire during the course of her employment.

At the time of her fall the Grievor was employed by the Council as a senior assistant health inspector. On 7 April 2003 she was walking from the kitchen in the office to her desk when she tripped over loose wires located on the floor between desks and landed on the floor on her back.

In the Judgment dated 18 May 2007 the Court found that the Council was in breach of its duties to the Grievor in leaving loose wires on the floor.

As a result of her injuries the Grievor had been on sick leave for about four months and then returned to work on light duty.

The Court noted that the early medical reports that had been received by the Council suggested that the Grievor had sustained a 32% permanent disability. This was reduced to 5% by the only doctor who gave evidence at the trial of the action. The trial Judge accepted that medical evidence and concluded that the Grievor had failed to establish on the balance of probabilities that the deviation of her coccyx was the result of the fall. The trial Judge awarded the Grievor general damages for the fall which she had sustained, for some small pain or upset and for the need to go to the hospital in the sum of $350 and special damages in the sum of $35 making a total of $385.

In paragraph 4 of the signed Statement of Agreed Facts the parties agreed that the Grievor had acted within her rights when she had rejected the offer of a workers compensation lump sum payment and exercised the option of proceeding to claim damages in the High Court.

An investigation had been commenced on 3 October 2006. By memorandum dated 12 March 2007 the Council forwarded to the Grievor a copy of the investigation findings and conclusions. The Grievor provided a detailed written response dated 12 March 2007.

By memorandum dated 25 May 2007, the Grievor was informed that her employment had been terminated. This was seven days after the delivery of the Judgment of the High Court. The memorandum stated:

"CAREFUL CONSIDERATION AND CONCLUSION

I have carefully scrutinized and considered the following documents:-

1. Investigation Report into allegations against you of "attempting to mislead the Council dealing with medical reports with regards to your claim in respect of your injury sustained on 7th April 2003."

2. Your written response to the above investigation Report.

3. Judgment on 18/5/07 on Reena Maureen Narayan vs. Suva City Council High Court Civil Action No. 495 of 2005

and have come to the conclusion that you are guilty of attempting to mislead the Council in dealing with your medical reports in regards to your claim in respect of your injury sustained on the 7th April 2003.

COMMON ESSENCE

In this context, the common essence of the findings and conclusions as documented in the Investigation Report and the earlier mentioned Judgment is that you tried to mislead the Council, Dr Taloga as well as the Court that you had suffered a more serious injury than that which would have resulted from such a fall. Your above action is obviously aimed to fraudulently secure for you more compensation than appropriate for your alleged sustained injury which will be ultimately paid by the Council.

DECISION

Taking into account the above, I have no other recourse but to terminate your employment with immediate effect under Clause Section V1 (a) (e) (1) of the Master Agreement between the Suva City Council and Suva City Council Association.

You will be paid all your legal dues up to Friday, 25th May, 2007."

It would appear from the memorandum that the Grievor was summarily dismissed because she attempted to mislead the Council with the medical reports concerning her injury on 7 April 2003. That ground was then expanded to include misleading not only the Council, but also Doctor Taloga and the Court by claiming to have suffered a more serious injury than that which would have resulted from such a fall.

The Council relied upon section V1 (1) (a) and section V1 (1) (e) (i) of the Collective Agreement as the basis for its decision to summarily dismiss the Grievor.

However section VI (1) (a) refers to the requirement to render satisfactory performance. The Grievor’s work performance was not in question in this dispute. Furthermore the Tribunal has concluded that the reference to termination of employment in that clause is a reference to termination of employment by the giving of notice or payment in lieu of notice.

The only grounds for summarily dismissing an employee are those set out in section V1 (1) (e). That clause must be applied in a manner which is consistent with section 28 of the Employment Act Cap 92.

The question for the Tribunal to determine is whether the Council genuinely and honestly believed on reasonable grounds that the Grievor attempted to mislead the Council, Doctor Taloga and the Court that her injury was more serious "than that which would have resulted from such a fall".

It should be noted that it was established to the satisfaction of the Court that the Grievor did trip and fall as a result of the presence of loose wires on the fall. The Court also found that the Grievor landed on the floor on her back. The Court also accepted that there had been an earlier fall and that there was a small deviation in relation to the coccyx.

There was no evidence before the Tribunal to substantiate the allegations made by the Council in relation to the circumstances under which the first medical report was obtained by the Grievor from Doctor Veitogavi

The Grievor disputed the Council’s assertions. There was no reference to these matters in the Statement of Agreed Facts.

It is common knowledge that an injured worker who is contemplating a claim for compensation either under some legislative scheme or at common law will be referred to and rely upon assessments and medical reports from a "sympathetic" medical practitioner.

It is also common knowledge that an employer or its insurer will require the injured worker to be examined by a medical practitioner of its choosing. Such medical practitioners are chosen on the basis that they usually assess the injured worker as having a disability which is less than that assessed by the medical practitioner who first examined the injured worker. Under such circumstances it is not unusual for there to be a discrepancy in the assessment of disability by medical practitioners.

In this case the first medical practitioner assessed the Grievor’s disability at 32%. The second medical practitioner assed the Grievor’s disability at 5%.
This assessment by Doctor Talonga, a Consultant Orthopaedic Surgeon at the CWM Hospital was set out in his report dated 12 August 2004.

It would appear that, following receipt of that report, the Ministry of Labour, wrote to the Council concerning the Grievor’s entitlement to workers compensation. The Council then wrote a memorandum dated 10 December 2004 to the Grievor stating :

"Please be advised that a report dated 22.11.04 on the instant subject from the Ministry of Labour, Industrial Relations & Productivity, claimed a sum of $3,902.73 to be paid to you.

Accordingly, you are requested to reply to this memorandum on whether you agree or disagree with the sum of $3,902.73."

By memorandum dated 10 February 2005 the Grievor informed the Council that she did not agree with the assessment and the amount offered.

The Tribunal is satisfied that when the amount of $3,902.73 by way of lump sum workers compensation payment was offered to the Grievor by the Council on 10 December 2004, it knew or ought to have known of the discrepancy between the assessments concerning the Grievor’s disability made by the two medical practitioners. The amount calculated by the Ministry of Labour as the amount of compensation to which the Grievor was entitled under the Workers’ Compensation scheme was based on the 5% disability assessed by Dr Taloga. The Council knew or ought to have known that the figure was calculated on the basis of 5% disability.

However, it was not until 3 October 2006 that the Council advised the Grievor that she was to be investigated for misleading the Council in dealing with medical reports.

The Tribunal is left with the conclusion that the Council only took that step after the Grievor had declined the workers compensation lump sum offer and had commenced common law proceedings in the High Court for damages.

The Grievor was represented by a legal practitioner for the High Court proceedings. The Tribunal can only assume that the risks and costs involved in litigation were fully explained to the Grievor and that she then gave instructions for her legal practitioner to commence the action.

It is noted that the only medical evidence called by the Grievor at the trial was Doctor Taloga whose evidence could hardly be described as being sympathetic to the Plaintiff. There was clearly no attempt to mislead anybody by calling Dr Taloga to give evidence concerning her injuries.

Furthermore it does appear to the Tribunal that the Grievor was attempting to establish that the crux of her claim was the back pain which she claimed she was experiencing as a result of her fall.

The court accepted the evidence of Dr Taloga that there was no clinical or radiological basis for the pain that the Grievor claimed to be experiencing. Furthermore the trial Judge did not appear to be impressed by the Grievor or her evidence. The medical evidence presented on behalf of the Plaintiff was not directed to establishing the possible existence of non-diagnosable residual back pain

The issue of pain and back injuries is sometimes complex. The issue of the psychological link between back pain and the completion of the litigation process is even more complex.

On the material made available by the parties through their signed Statement of Agreed Facts, the Tribunal is not satisfied that the Council could honestly and genuinely conclude on reasonable grounds that the Grievor had attempted to mislead the Council in dealing with her medical reports. Furthermore the Tribunal is not satisfied that the Council could have honestly and genuinely concluded on reasonable grounds that the Grievor had tried to mislead the Council, Dr Taloga as well as the Court.

The Council had only pursued the disciplinary proceedings after the judgment of the High Court had been delivered. An unfavourable verdict or result in High Court civil proceedings can be the result of any one of a number of factors. In this case the medical evidence which was put forward on the Grievor’s behalf by her legal practitioner was incomplete and unfavourable. The Court could do no more than rely on the evidence that was placed before it. The fact that the Court was not impressed by the demeanour of the Grievor as a witness or by her evidence does not necessarily lead to the conclusion that she attempted to mislead the Court. The Judge’s attitude towards the Grievor was to some extent determined by the lack of favourable medical evidence.

The Tribunal has concluded that the summary dismissal of the Grievor was unlawful and unjustified.

The Tribunal is satisfied that there is no evidence that the Grievor would not continue to have the trust and confidence of the Council. As a result the Tribunal has concluded that re-instatement is appropriate in this case. The Grievor is to be re-instated with immediate effect without any loss of pay and benefits.

In the event that the Grievor is not able to return to the duties that she performed prior to her fall, the Council may consider its options under the Collective Agreement in consultation with the Association.

AWARD

The summary dismissal of the Grievor was unlawful and unjustified. The Grievor is to be re-instated with immediate effect without loss of pay and benefits.

The Grievor’s future employment with the Council is to be determined by her medical condition, available work and the provisions of the Collective Agreement in consultation with the Association.

DATED at Suva this 19 day of May 2008.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL