Suva City Council Staff Association v Suva City Council [2008] FJAT 24; Award 25 of 2008 (19 May 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 25 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 dismissal of Mr Sudesh Kumar (the Grievor).

A trade dispute was reported by the Association on 3 August 2007.

The report was accepted on 6 September 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 no material before the Tribunal to indicate why the reference was not made pursuant to section 5A.

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

"- - - over the termination of employment of Mr Sudesh Kumar with effect from 25 October 2007. The Association contends that the actions taken by the Council were harsh, unlawful, unjustified and unwarranted and demands that Mr Sudesh Kumar be re-instated to his substantive position without any loss of benefits, retrospective."

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 and the Council did so on 14 December 2007. At the request of one or other of the parties the Dispute was listed for mention by consent on 19 December 2007, 30 January, 29 February and 28 March 2008.

The hearing of the Dispute commenced on 23 April 2008 in Suva. The hearing was adjourned part heard to 28 April and then to 29 April 2008. The hearing of evidence was completed on 2 May 2008 after which the parties presented closing oral submissions. During the hearing the Council called two witnesses and the Association called the Grievor to give evidence.

The Grievor commenced employment with the Council on 2000 as a building inspector. He was appointed to the position of property officer in 2002 and continued to hold that appointment until his employment was terminated on 25 October 2007.

A letter dated 24 September 2002 addressed to the Grievor set out the essential terms and conditions of this contract of service. The Grievor accepted the terms and conditions when he signed an acknowledgment on 26 September 2002. As a member of the Association the relevant terms of the Collective Agreement became an implied condition of the Grievor’s contract of service pursuant to section 34 (7) of the Trade Disputes Act Cap 97.

On Wednesday 16 August 2006 a pre-Hibiscus 2006 Cocktail function was held at the Lower Auditorium of the Suva Civic Centre. Towards the end of the evening an incident occurred involving one of the contestants in the Hibiscus Queen contest, Ms Pearl Ralovo. Ms Ralovo alleged that the Grievor bit her on her left cheek just below her ear. Ms Ralovo made a detailed statement which she signed on 29 August 2006. As part of her evidence before the Tribunal Ms Ralovo adopted that statement as her evidence in chief.

After the incident and as a result of much discussion amongst all the concerned parties (other than the Grievor) it was agreed that the matter would not be pursued with the police and that the Grievor would not attend any further Hibiscus functions held in the Civic Centre.

The Town Clerk then appointed on 31 August 2006 a Disciplinary Committee to investigate the incident. The Human Resources manager was appointed Chairperson of that Committee.

By memorandum dated 31 August 2006 the Grievor was advised that he was suspended with effect from 30 August 2006 on half pay. Omitting formal parts, the memorandum stated:

‘You are advised that you are suspended pursuant to paragraph 16 (d) of the Master Agreement between the Suva City Council and the Suva City Council Staff Association. Your suspension is effective immediately as at Wednesday, 30th August, 2006 and you are further advised that you shall be on half (1/2) pay.

You are to appear before the Disciplinary Committee to be held at the Council’s Training Room on Thursday, 7th September, 2006 at 2.30pm.

The purpose of this suspension is to investigate the allegations outlined below against you. You are required to answer to each and every one of them. You have the opportunity to respond to the allegations in writing and you also have the opportunity to orally respond to the allegations before the Disciplinary Committee on Thursday, 7th September, 2006.

The allegation laid against you is:

i) Misconduct inconsistent with the fulfillment of the express or implied conditions of your contract of service.

It is alleged that you did the following :

PARTICULARS OF OFFENCE

COUNT 1

SUDESH KUMAR s/o Paras Ram on the 16th day of August 2006 on or about 10.30pm at the Vodaphone Hibiscus Festival 2006 Cocktail which was held at the Lower Hall, Civic Centre, Suva in the Central Division, indecently assaulted one Pearl Ralovo, a fellow Hibiscus Contestant by grabbing her and kissing her on the lips without her consent.

COUNT 2

SUDESH KUMAR s/o Paras Ram on the 16th day of August 2006 on or about 10.30pm at the Vodaphone Hibiscus Festival 2006 Cocktail which was held at the Lower Hall, Civic Centre, Suva in the Central Division, assaulted one Pearl Ralovo, a fellow Hibiscus Contestant by grabbing the said Pearl Ralovo and biting her left cheek.

COUNT 3

SUDESH KUMAR s/o Paras Ram on the 16th day of August 2006 on or about 10.30pm at the Vodaphone Hibiscus Festival 2006 Cocktail which was held at the Lower Hall, Civic Centre, Suva in the Central Division, by indecently assaulting and causing actual bodily harm on one Pearl Ralovo has brought Suva Civic Council, your employer into disrepute in the eyes of the public.

The particulars of each allegations (corresponding with the above numbering allegations) are as follows:

You are advised that disciplinary action such as dismissal may result from the findings of the inquiry. You have the right, if you so wish to be accompanied and represented by your legal counsel and/or Union Representative.

You are advised to hand over all your duties to the Director Administration & Operations and inform him of all pending matters prior to proceeding on suspension. You are also required to handover the Council mobile phone and keys to the Director Administration & Operations.

You are also advised not to interfere with any of the employees, Councilors and Ms Pearl Ralovo during the course of this investigation.

We enclose the following statement:

1) Statement of Pearl Ralovo

2) Statement of Daniel Singh."

A disciplinary hearing took place on 7 September 2006. The Grievor was represented by legal counsel and a union representative was also present with the Grievor.

By memorandum dated 13 September 2006 the Committee through its Chairperson forwarded its report to the Town Clerk. The report concluded with the following findings:

‘The Committee had deliberated on the written submission by the Complainant and the oral presentation by Sudesh’s Legal Counsel and has concluded with the following findings:-

COUNT 1 & 2

The committee has found and confirmed that he has committed the following offences in breach of the Master Agreement in the manner he had conducted himself by:

1. grabbing and biting the left check of one Pearl Ralovo (complainant) which can be tantamount to assault.

2. Grabbing and kissing the complainant without her consent which can be tantamount to indecent assault.

COUNT 3

The Committee has found out and confirmed that he has brought disrepute to Suva City Council as the offences committed that were highlighted in the media appeared to be bordering on sexual harassment and has attracted a lot of negative comments about the Council and has also tarnished its image.

The above allegations are serious in nature and Sudesh Kumar should be disciplined accordingly."

The above findings were conveyed to the Grievor by memorandum dated 19 September 2006. By memorandum dated 25 September 2006 the Grievor was advised that he should provide a response to the findings by 27 September 2006. The Grievor subsequently requested further time and presented a detailed response by letter dated 3 October 2006.

Unfortunately the Grievor in that response chose to simply challenge the findings and failed to put forward any mitigating material which may have been taken into account by the Council when determining an appropriate penalty.

The Grievor was advised by letter dated 25 October 2006 that his employment with the Council had been terminated. Omitting formal parts, the letter stated:

"I am to advise that I have carefully considered your written response to the Investigation Team’s Report and have come to the conclusion that you have not negated their findings that you are guilty of commiting the following:

"You had assaulted the complainant, Miss Pearl Vani Naborosui Ralovo, Miss Hibiscus Contestant, by grabbing her and biting her check below her left ear during the Vodaphone Miss Hibiscus Festival cocktail held on the night of 16th August this year at the Lower Hall, New Town Hall".

In this connection, I am to further advise that I concur with the investigation Team and as such, I find you guilty of misconduct which is inconsistent with the fulfillment of your expressed or implied conditions of your contract of service.

Within this context, I am of the view that you had committed a very serious offence in that your misconduct not only took place in the Council’s premises but also in the Council’s co-sponsored event in which the members of the public that were present came to be aware of this sordid incident immediately.

In this regard, your misconduct had brought disrepute to the Council and as such, I have no other recourse but to regretfully with a heavy heart terminate your services with the Council with immediate effect in accordance with Section VI, Clause (e) (l) of the Master Agreement.

On the evidence before it, the Tribunal is satisfied that the Grievor was present at the cocktail function on 16 August 2006 as an invited guest in his capacity as the Council’s Property Officer. The function was co-hosted by the Council and the Council was also a co-sponsor of the Hibiscus Festival.

The Tribunal is also satisfied that the Grievor had consumed alcohol prior to the incident and was under the influence of alcohol at the time of the incident.

The Tribunal has concluded that the Council had reasonable grounds for honestly and genuinely concluding that the Grievor had committed the misconduct for which his employment was terminated. The Council accepted the version of events which were set out in Ms Ralovo’s statement. The Tribunal considered Ms Ralovo to be a reliable witness whose evidence was believable and probable. The Grievor could not offer any substantive reason why Ms Ralovo would have invented the incident.

The Tribunal accepts that the misconduct did occur outside of the Grievor’s working hours and hence he was technically not on duty at the time of the incident.

However the Tribunal is satisfied that the evidence has established a sufficient nexus between the misconduct and the employment relationship to provide the Council with proper grounds on which to discipline the Grievor.

As previously noted, the misconduct occurred on Council premises at a function co-hosted by the Council and to which the Grievor had been invited by the Hibiscus Committee in his capacity as the Council’s Property Officer.

The Tribunal is also satisfied that the misconduct was such that it was inconsistent with the fulfillment of the implied conditions of the Grievor’s contract of service. As such it was a ground for which the Council could consider the penalty of summary dismissal. The Tribunal is satisfied that the misconduct was sufficiently serious that it was open to the Council to impose the penalty of summary dismissal under section 28 of the Employment Act Cap 92. The Tribunal is also satisfied that the decision to summarily dismiss the Grievor was reasonable and was within the range of penalties open to a reasonable employer acting reasonably.

The Tribunal does not consider that the Grievor was in any sense whatsoever denied procedural fairness and accordingly there was no denial of natural justice.

The Tribunal has concluded that the Grievor was treated fairly by the Council in the manner in which it carried out the dismissal of the Grievor and hence there has been no breach of the implied term to treat the Grievor fairly in the context of dismissal.

The Tribunal is not assisted by the evidence which related to misconduct by other employees. The Tribunal does not consider it desirable to open up an inquiry into the circumstances surrounding the imposition of penalties in respect of earlier misconduct by different employees who had no involvement in the misconduct in this Dispute.

AWARD

The summary dismissal of the Grievor was not unjustified nor unwarranted.

DATED at Suva this 19 day of May 2008.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL