Transport Workers Union v Air Pacific Ltd [2008] FJAT 30; Award 32 of 2008 (17 June 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 32 OF 2008

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

TRANSPORT WORKERS UNION

AND

AIR PACIFIC LIMITED

TWU: Mr K Kumar
Air Pacific: Mr N Barnes

DECISION

This is a dispute between Transport Workers Union (the Union) and Air Pacific Limited (the Employer) concerning the dismissal of Mr Iliesa Tabua (the Grievor).

A trade dispute was reported by the Union on 17 October 2007.

The report was accepted on 1 November 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 5A (5) (a) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 5 December 2007 with the following terms of reference:

"- - - for settlement over the termination of employment of Mr Iliesa Tabua with effect from 21 May 2007. The union views the employer’s actions as unjust and unfair and seeks his re-instatement without loss of pay and benefits with retrospective effect from 21 May 2007."

The Dispute was listed for a preliminary hearing on 14 December 2007. On that day the parties were directed to file preliminary submissions within 28 days and the Dispute was listed for mention on 30 January 2008.

The Union filed its preliminary submissions on 15 January and the Employer did so on 18 January 2008.

On 30 January the Dispute was listed by consent for further mention on 29 February. The Dispute was subsequently listed by consent for further mention on 28 March and 25 April 2008.

The hearing of the Dispute commenced on 15 May 2008 in Suva and was completed the following day. The Employer called one witness and the Union called two witnesses to give evidence. At the conclusion of the evidence the parties presented closing oral submissions.

On 3 November 2003 the Grievor commenced employment as a Trainee Flight Attendant on a salary of $8834 per annum. The appointment was subject to a total probationary period of six months.

He apparently successfully completed the probationary period and his employment was subsequently confirmed.

Prior to 3 November 2003, the Grievor had been selected to attend a course of ten weeks ground training.

The Grievor’s letter of appointment dated 3 November 2003 contained, amongst other things, the following information concerning performance:

"Air Pacific expects a high standard of performance and grooming (i.e. weight, appearance, professional work ethics, etc.) from its cabin crew and has established minimum standards to be achieved by crew appointees during training, probation and thereafter. These standards have been explained to you during your initial training and must be maintained at all times. Regular appraisals of your performance will be carried out and other assistance given to you throughout your flying career to ensure these standards are maintained. Failure to maintain these minimum standards will result in termination of your employment.

- - - -

Other terms and conditions of your employment shall be in accordance with the Company’s rules and regulations as contained in the Company’s Manuals and handbooks, including amendments that are made from time to time, as well as the applicable union collective agreement."

Although this letter was not put into evidence, the Tribunal is satisfied that it constituted the essential terms of the Grievor’s oral contract of service as required by the Employment Act Cap 92.

The Tribunal accepts the evidence of Ms Kelera Dakuliga who was responsible for conducting the ten weeks of ground training which the Grievor attended. Ms Dakuliga stated that the course included two and a half days training on the Cabin Crew Administration Manual (CCAM). She stated that the course also included instruction on the Company Policies and Procedures Manual (CPPM). The trainees were each given a copy of the CCAM for the duration of the course. It would appear that upon commencing employment each new employee was issued with a copy of the CCAM.

As a result the Tribunal is satisfied that the Grievor knew or ought to have known the relevant provisions in both manuals concerning the consumption of alcohol.

Upon becoming a member of the Union the relevant provisions 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. The Collective Agreement was the Agreement dated 27 January 2006 made between the Union and the Employer and registered with the Ministry of Labour on 6 February 2006.

The Grievor was rostered for duty on Sunday 20 May 2007 as a flight attendant member of the cabin crew on Flight FJ 911 from Nadi to Sydney departing at 0900 hrs. He reported for duty at the briefing room for the pre flight briefing at the designated time.

At the completion of the briefing, the Purser was handed a note by a crew member who was attending the briefing that stated that the Grievor smelt of alcohol. The Purser then had a conversation with the Grievor. Although there was some inconsistency in the evidence concerning the contents of that conversation, the Tribunal is satisfied that the Purser did smell alcohol from the Grievor and that he at least appeared not to have shaved that morning.

The Purser indicated to the Grievor that he was to be stood down and the matter was reported to the Logistics Department who in turn contacted Mr Nemani Batau, the Manager Cabin Services.

The Grievor underwent a blood test later the same morning. The report dated 1 June 2007 from the Namaka Medical Centre (per Doctor S K Sharma) stated :

" - - -

The blood result from Austec Sydney Laboratory has come back with a blood alcohol level of 28 mmol/L. This level is indicative of being intoxicated with alcohol.

It can be concluded that the abovenamed person was under the influence of and intoxicated with alcohol when examined on 20 May 2007 at approximately 10.00am".

In a subsequent report dated 24 April 2008 from Namaka Medical Centre Ltd (again per Dr S K Sharma) a number of issues were discussed concerning blood alcohol readings.

This report was, of course, obtained well after the Grievor’s employment had been terminated by the Employer. The Reference requires the Tribunal to determine whether the Employer’s decision to terminate the Grievor’s employment was unjust and unfair. This necessarily requires a determination as to whether the Employer had at the time of dismissal reasonable grounds for honestly and genuinely concluding that the Grievor had committed the acts which constituted the misconduct.

Following the blood test the Grievor was suspended without pay by the Manager Cabin Services on the same day.

The Grievor received a letter dated 29 May 2007 advising him of the details of a disciplinary hearing, confirming his suspension and detailing the charges and the particulars of the charges. The letter, omitting formal parts, stated:

"You are to attend a disciplinary inquiry to be held at the Air Pacific Customer Relations & Services Conference Room – Nadi on Wednesday, 06 June 2007, at 1100hours.

The purpose of this inquiry is to investigate certain charges against you. The charges are:

1. Wilful neglect of duty and misconduct during tour of duty.

2. Breach of the Cabin Crew Administration Manual (CCAM)

Chapter 1, Page 18 Personal Conduct whilst on a Tour of Duty. Chapter 1 Page 15 ‘Alcohol and Kava;, Chapter 1 page 3 ‘Cabin Crew Administration Manual’.

3. Breach of Company Policies and Procedures Manual [CPPM] Part 1, Section 14 ‘Employee Behaviour" Policy No 3 and CCAM Chapter 1 page 19.

The particulars of the charges are that :

1&2 You presented yourself in uniform as a fit and proper flight attendant ready for duty as a safety and customer service professional and had attended crew briefing on Sunday, 20 May 2007 at the Maintenance and Administration Centre Crew Briefing Room at the beginning of your tour of duty. However, at the commencement of briefing you were found to be in an intoxicated state and smelled of alcohol. You were therefore considered to be unfit to operate as a safety and customer service professional.

This irresponsible behaviour tantamounts to willful neglect of duty and misconduct.

3. During crew briefing, it was visible that you had not shaved and your eyes were blood shot. You are expected by the Company to be "immaculately groomed" for your tour of duty and your personal presentation on the morning of the 20th May fell far short of expectation. The Company also expects you to adopt a responsible attitude towards your work and maintain a good image as a safety professional and customer services officer for the operation and to promote the commercial interest of the Company.

Your actions are a serious breach of Company requirements, regulations and established Company procedures.

You are advised that disciplinary action including termination of employment may result depending on the findings of the inquiry. You have the right, if you so wish to be accompanied and represented by an official of your Association.

In the meantime you are grounded from duty without pay effective Monday 21st May 2007 pending the outcome of the inquiry."

The Disciplinary hearing took place on 7 June 2007. The hearing was chaired by the General Manager Human Resources (Mr Komailevuka). Also present were the Grievor, the Union General Secretary, the Cabin crew union representative, Manager Cabin Services and A/GMCRS (Mr B Rova).

Following the disciplinary hearing, the Grievor received a letter dated 5 July 2007 from the Employer which was signed on its behalf by the Manager Cabin Services. That letter stated:

"I refer to my letter of 29 May 2007, wherein you were charged with:

1. Wilful neglect of duty and misconduct during tour of duty.

2. Breach of the Cabin Crew Administration Manual (CCAM) Chapter 1, Page 18 ‘Personal Conduct whilst on a Tour of

Duty; Chapter 1 page 15 ‘Alcohol and Kava;, Chapter 1 page 3 ‘Cabin Crew Administration Manual’.

3. Breach of Company Policies and Procedures Manual {CPPM} Part 1, Section 14 ‘Employee Behaviour’ Policy No 3 and CCAM Chapter 1 page 19.

A disciplinary inquiry was convened 6 June 2007 and you were represented by TWU ‘General Secretary Kamlesh Kumar with SFA Sefeti Banati in attendance.

In investigating the facts, the Company has thoroughly examined your oral responses to the above charges as well as the submissions made on your behalf by Mr Kumar at the inquiry. The following are our findings.

On the first charge, you acknowledged and understood your role as a safety and customer service professional and admitted that whilst reporting for duty Sunday, 20 May 2007 you smelled of alcohol. However, you disagreed that your action was willful and that you were not under the influence of alcohol. The medical report from the doctor who undertook your blood test that day stated otherwise and confirmed the alcohol level in your blood sample indicated you were under the influence. This report was shared with you and Mr Kumar. The panel also noted with interest how your unrelenting denials subsided when details of the doctor’s report were shared with you. This willful neglect of duty is a serious breach of your employment conditions and is an unacceptable disposition for our service professionals who interface with our customers.

On the second charge, you are fully aware that a member of Cabin Crew positioning as a passenger whether to base or to another port for operational requirement is effectively on a tour of duty. You also know that positioning duties are governed by specific restrictions and rules that regulate crew responsibilities. Our investigations confirm you effectively breached Company regulations when dead-heading to base on flight FJ411 Saturday, 19 May 2007 under the influence of alcohol. You disputed our assertion that we had information you consumed alcohol whilst on this flight. Your adamant denials on this allegation have been verified as fabrications and we were very concerned that you continued to refute the claim despite our suggestions to the contrary. Iliesa this has cast serious doubts about your veracity as an employee of Air Pacific and we consider your action as willful neglect of duty and serious misconduct.

You also did not agree to the third charge and its particulars and claimed ignorance of Company policies regarding employee behaviour. You claimed your general grooming and demeanour during crew briefing the morning of 20 May 2007 portrayed a responsible disposition and readiness to perform your duties. However, we have verified and confirm quite the contrary in that you failed to ensure you were properly groomed to required company standards as stipulated in both the CCAM and CPPM. If we must clarify, please be aware that we aware that we avoid breaching these standards as these lead to ruining our image as an organization and put our business t risk notwithstanding on-costs.

Iliesa, you have comprehensively breached the terms and conditions of your employment with the Company and we will now consider disciplinary action.

You are advised that inviting your resignation or termination of employment are options that the Company will consider.

You are to make submissions to the Company in view of the above findings and the Company will consider this submission (which you are to present) at the CRS Conference Room Friday 6 July, 2007 at 1000hrs. You have the right, if you so wish, to be represented by an official of your Association at the mitigation hearing."

The Tribunal has some concern about the contents of this letter. The letter dated 5 July 2007 on page 2 referred to particulars in relation to the second charge which were not referred to in the letter dated 29 May 2007. The particulars for charges 1 and 2 as set out in the letter dated 29 May 2007 made no reference to any incident as a "dead-heading" passenger on a flight from Auckland on 19 May 2007, However in the letter dated 5 July 2007 this matter was relied upon as the basis for establishing charge 2.

The Tribunal considers that if the Employer had intended to rely on this material as particulars of charge 2, the Grievor should have been so advised in the letter dated 29 May 2007. It is clear from the Purser’s handwritten statement dated 20 May 2007 that the Manager Cabin Services knew or ought to have known about that matter when he drafted the letter dated 29 May 2007.

Furthermore, the minutes of the disciplinary hearing did not contain any reference to the additional matters relating to charge 2 (i.e. first paragraph on page 2 of the letter dated 5 July 2007.

The mitigation hearing took placer on 9 July 2007 with union representation. Following the mitigation hearing, the Manager Cabin Services submitted a report for the consideration of senior management.

In the report the Manager Cabin Services expressly referred to the drinking which it was alleged occurred during the flight from Auckland the day before. There was no evidence before the Tribunal that that incident had been formally reported by any crew member in authority on that flight. Although it was mentioned in the Purser’s handwritten report as a matter that the Grievor himself mentioned, there was no reference to it in the letter dated 29 May 2007. No disciplinary action was taken in respect of the failure to report the in-flight drinking incident of 19 May 2007.

The submission also relied on conclusions as statements of fact concerning events which had occurred from the time the Grievor arrived back in Nadi on 19 May till the time of reporting for duty on 20 May 2007. There was no indication in the material before the Tribunal to determine upon what evidence the Manager Cabin Services had relied.

Finally the Manager Cabin Services stated that the Grievor did not display any remorse for his actions. However the minutes of the mitigation hearing stated at paragraph 4 that "FA Iliesa Tabua apologized and admitted that he smelt of alcohol" And in paragraph 7 the following appeared:

"- - - He was thankful that incident took place and he is now reflecting on himself. - - - He realizes the seriousness of his offence and who his real friends are when dealing with such a situation".

It would appear that the submission prepared by Manager Cabin Services found its way to the General Manager Customer Relations & Services (Mr J Samson). In a memorandum dated 18 July 2007 he confirmed the recommendation made by Manager Cabin Services that the Grievor’s employment be terminated and sought the concurrence of the Acting Executive GM Operations/Services.

Paragraph 2 of that memorandum summarised the Grievor’s misconduct as:

"He arrived to work on May 20 and found to be intoxicated and smelled of alcohol. He had not shaved and had blood shot eyes. He was taken to the company doctor and was tested for alcohol. The medical report confirmed positive alcohol blood level."

The Tribunal is satisfied that the Employer had reasonable grounds for honestly and genuinely reaching that conclusion.

The same memorandum in paragraphs 3 and 4 referred to previous incidents which occurred on 20 February and 13 December 2006 involving the Grievor. Although both incidents appeared to involve alcohol, the Grievor did not receive a warning in respect of either. The Tribunal can only conclude that they were not viewed by the Employer as being sufficiently serious to warrant the issuing of a formal warning.

The same memorandum then referred to the Grievor having breached Regulation 72 (2) of the Air Navigation Regulations. That was the first time that Regulation 72 (2) had been expressly raised in relation to the Grievor’s behaviour. There are two separate offences created by Regulation 72 (2).

The first is that no person shall act as or be carried in an aircraft for the purpose of acting as, a member of the crew of the aircraft if he has taken or used any alcoholic drink - - - within 12 hours of the commencement of the flight. The second is that no person acting as or being carried in an aircraft for the purpose of acting as, a member of the crew of the aircraft, shall, while so acting or being carried in the aircraft for the purpose of so acting, take, use or be under the influence of any alcoholic drink - - - ."

The penalty for such an offence is prescribed in Regulation 157 (3) as being a fine not exceeding $1000 or imprisonment for up to 6 months or both.

There are two observations which need to be made about this matter. First, the regulation creates a criminal or quasi-criminal offence which can only be dealt with by a court of competent jurisdiction and which needs to be established by the prosecution beyond reasonable doubt. Mr Samson does not satisfy that requirement.

Secondly, the Tribunal is not satisfied that the Employer could honestly and genuinely conclude on reasonable grounds that the Grievor had consumed alcohol within 12 hours prior to the scheduled departure time of 9.00am on 20 May 2007.

Furthermore, the Tribunal is not satisfied that the Employer had any grounds for concluding that the Grievor had consumed alcohol while being carried as a crew member and acting as a crew member.

It would appear that a decision was subsequently taken by senior management that the Grievor was to be dismissed. He was advised of that decision by a letter dated 19 July 2007 signed on behalf of Manager Cabin Services which stated:

"I refer to my letter of 29 May 2007 wherein you were charged with:

1. Wilful neglect of duty and misconduct during tour of duty.

2. Breach of the Cabin Crew Administration Manual (CCAM) Chapter 1, Page 18 ‘Personal Conduct whilst on a Tour of Duty;, Chapter 1 page 15 ‘Alcohol and Kava;, Chapter 1 page 3 ‘Cabin Crew Administration Manual’.

3. Breach of Company Policies and Procedures Manual (CPPM) Part 1, Section 14 "Employee Behaviour" Policy No 3 and CCAM Chapter 1 page 19.

A disciplinary inquiry was convened Thursday 07 June 2007 at the Customer Relations and Services Conference Room. You were represented by TWU General Secretary Kamlesh Kumar and Senior Flight Attendant Banati Sefeti.

You were later informed of the Company’s findings against you in respect of the charges on 05 July 2007. You were also advised that your negligence and serious breach of established Company Policies were sufficient to justify dismissal and invited thereafter to mitigate in regard to the appropriate disciplinary action to be taken.

Iliesa, we have now considered all the mitigation factors presented by you and the verbal statement submitted by the representative of TWU on your behalf at the mitigation hearing 09 July 2007. I have concluded, taking into account the totality of the circumstances including the seriousness of the charges that in this instance termination of your employment is the appropriate action.

Your employment is therefore terminated in accordance with clause 5.2 of the Cabin Crew Collective Agreement, effective 21 May 2007, the day you were suspended.

Please return all company property in your possession, including uniforms, manuals and ID and medical cards o my office for clearance formalities.

Should you be aggrieved by this decision, you may activate the Grievance Procedure of the Collective Agreement."

It is significant that the termination letter referred to the charges (and hence the particulars) which were contained in the letter dated 29 May 2007.

As previously noted, based on the particulars provided in that letter, the Employer had sufficient grounds for honestly and genuinely reaching the conclusion stated in paragraph 2 of the Memorandum dated 18 July 2007 from the General Manager Customer Relations and Services to Acting Executive General Manager Operations/Services. There were sufficient grounds for the Employer to honestly and genuinely conclude that on 20 May 2007 the Grievor reported for work smelling of alcohol and intoxicated. He gave the appearance of not having shaved and his eyes were bloodshot. A medical test conducted later in the morning indicated a BAC reading of .129% or 28mmol/L.

It would appear that the justification for imposing the penalty of summary dismissal was a finding of guilt in respect of each of the three charges against the Grievor and that such misconduct constituted serious misconduct.

In respect of Charge 1 the Tribunal is satisfied that the Employer was entitled to conclude that the Grievor’s appearance and his intoxicated state at the pre-flight briefing constituted misconduct during his tour of duty.

Charge 2 related to specified breaches of the CCAM. The first is identified as Chapter 1 Page 18 "Personal Conduct whilst on a Tour of Duty". Exhibit 5 before the Tribunal consisted of two pages from the CCAM being pages 15 and 16 of Chapter 1 of the July 2005 version which was the applicable version at the time of the Grievor’s disciplinary proceedings. There was no paragraph in exhibit 5 with the heading "Personal Conduct whilst on a Tour of Duty". There was no page 18 in exhibit 5.

Exhibit 6 before the Tribunal consisted of pages 15 and 16 of Chapter 1 of the CCAM. Page 15 did include paragraph 1.30 with the heading Personal Conduct whilst on a Tour of Duty." However this extract of the CCAM came into effect on 31 August 2007 which was after the disciplinary proceedings against the Grievor had been completed.

There was therefore no material before the Tribunal to enable it to determine what exactly was required to be established by the employer to justify the finding of guilt.

The next reference to the CCAM in charge 2 of the termination letter is Chapter 1 page 15 "Alcohol and Kava." Exhibit 5 before the Tribunal consisted of pages 15 and 16 of Chapter 1 of the CCAM dated 15 July 2005. This was the version at the time of the disciplinary proceedings against the Grievor. Under the heading "Alcohol and Kava (Yaqona)", the following appeared:

"No alcoholic beverage or kava is to be consumed by a Cabin Crew during the 12-hour period prior to scheduled departure. Any breach of this regulation will lead to summary dismissal.

This instruction applies to operating Cabin Crew and Cabin Crew positioning as passengers on Duty Travel. A Cabin Crew, in uniform, shall not consume alcoholic beverages in a public place. Cabin Crew shall not consume any alcoholic beverage during flight (even to taste to determine the condition of the beverage) whether or not passengers are carried onboard the aircraft.

Cabin Crew positioning as passengers back to base or to another port for operational requirements shall not consume alcohol as they are effectively on duty. (Reference: Standard of Conduct Page 19). Any breach of these regulations will lead to disciplinary action and may include dismissal.

The first paragraph has already been discussed earlier in this decision.

The second paragraph did not apply to the particulars alleged against the Grievor. The particulars alleged against the Grievor in the letter dated 29 May 2007 did not refer to any incident involving the Grievor as a cabin crew member positioning as a passenger on duty, nor that he consumed alcohol in public and nor that he consumed alcohol during flight.

The third paragraph has already been discussed earlier in this decision.

The third reference to the CCAM in charge 2 is Chapter 1 page 3 "Cabin Crew Administrative Manual" and does not make sense. There was no such extract adduced in evidence.

The third charge related to a breach of the Company Policies and Procedure Manual (CPPM) Part 1 Section 14 "Employee Behaviour" Policy No 3. Although not put into evidence, this extract was included in the Employer’s Preliminary submissions. This extract came into effect on 15 April 2004. Policy No 3 stated:

"The Company expects all employees, irrespective of their work in the organization, to adopt a responsible attitude toward their work and to conduct themselves in such a manner so as to maintain good image and promote the operations and commercial interest of the Company."

The Tribunal accepts that the Grievor’s misconduct constituted a breach of this policy.

The third charge also alleged a breach of Page 19 Chapter 1 of the CCAM. There was however no such material placed before the Tribunal either by way of evidence or in preliminary submissions.

The Employer has relied on clause 5.2 of the Collective Agreement. That clause states that a flight attendant may be dismissed by the Company without notice for misconduct or neglect of duty. However that clause must be read in a manner which is consistent with section 28 of the Employment Act Cap 92. Section 28 retains the common law right of the Employer to summarily dismiss an employee for serious misconduct which falls within one of the five circumstances listed in the section. The critical point is that the misconduct must be serious misconduct that would justify the Employer regarding the employment contract as being discharged.

As Scott J noted, with the approval of the Fiji Court of Appeal:

"- - - the section did not confer an unfittered right to dismiss an employee where any of the matters specified in section 28 was found to exist, rather it removed the common law right to dismiss except where paragraphs (a) to (b) applied. [See Fiji Public Service Association and Satish Kumar –v- the Arbitration Tribunal and FTIB (unreported Civil Appeal No 13 of 1999 delivered 19 February 2002 at page 10) and also Awards 38 of 1999 and 4 of 2000].

It should be noted that clause 30 of the Collective Agreement is closer to the mark when it refers to dismissal for gross misconduct.

The disciplinary procedure that was required to be applied by the Employer was that set out in clause 30 (as amended) in the Collective Agreement.

At the beginning of the clause, a number of conditions are listed. Relevant to this Dispute are the following:

"

- At every stage in the procedure the employee will be advised of the nature of the issues of concern and will be given the opportunity to offer rbbutal .

- No employee will be dismissed for a first breach of discipline except in the case of gross misconduct when the penalty may be summary dismissal."

The clause also provides for four stages of progressive disciplinary penalties. The first is a verbal warning for conduct or performance that does not meet acceptable standards or for breaches of existing regulations.

The second stage is a written warning if the issue is of a serious nature or if a further issue arises. The written warning is required to give details of the misconduct or the performance problem and the improvement required.

The third stage is a final written warning if conduct or performance is still unsatisfactory or if the misconduct is sufficiently serious to warrant only one written warning but insufficiently serious to justify dismissal. The final written warning will give details of the misconduct or performance problem and will warn that dismissal will result if there is no satisfactory improvement.

The final stage is dismissal if conduct or performance is still unsatisfactory and the employee still fails to reach the prescribed standards.

The Tribunal has no doubt that by reporting for work under the influence of alcohol and in an intoxicated state the Grievor must incur some form of disciplinary sanction. An aggravating factor to be taken into account was that the Grievor’s appearance was not up to the standard that the Employer was entitled to expect and which the Grievor knew or ought to have known was unacceptable. The Tribunal is satisfied that the Grievor was not in a state whereby he could perform and appear to perform his duties to the required standard. The issue is whether the dismissal was unjustified and unfair in all the circumstances.

In answering this question the Tribunal is required to take into account the stages of progressive discipline for which provision is made in the Collective Agreement. The Tribunal needs to consider the circumstances of the misconduct. The Tribunal also considers the work history of the Grievor, his age, level of maturity and personal circumstances.

Although there were two previous incidents involving alcohol, the Grievor had not received any form of warning under the provisions of clause 30 of the Collective Agreement.

The Grievor was a young man whose work performance was described by the Manager Cabin Service as good. His level of maturity and in particular his attitude towards the consumption of alcohol did not appear to the Tribunal to be of a high standard. However that is a matter which a responsible employer should handle in an appropriate and responsible manner through some form of guidance or counseling. The Tribunal notes the offer of assistance that was made to the Grievor in his letter of appointment.

Under the circumstances the Tribunal has concluded that the Grievor’s misconduct was not sufficiently serious to justify the Employer proceeding to a stage 4 dismissal without any previous formal warning of any description.
The Tribunal has concluded that a reasonable Employer would not have considered summary dismissal as being with the range of penalties appropriate in this case. Under the circumstances the dismissal was unjustified and unfair.

There was no material before the Tribunal to suggest that with an appropriate admonition in the form of a Final written warning (stage 3) the Grievor would not continue to be an effective member of the Employer’s cabin crew. As a result the Tribunal considers re-instatement to be an appropriate remedy.

The Grievor is to be re-instated with effect from the date of his dismissal. He is to be paid six months salary and the balance is to be regarded as leave without pay. He is to be issued with a Stage 3 Final written warning which is deemed to have been issued on the date of this Award.

The Tribunal considers it appropriate to make a brief comment as to the manner in which this incident involving the Grievor was handled by the Employer with particular reference to the Manager Cabin Services.

In his evidence he admitted that both the incident itself and the Grievor’s attitude had annoyed him. The Tribunal accepts the evidence given by the Grievor that he was threatened with instant dismissal if he did not submit to the blood test.

The Tribunal also accepts the Grievor’s evidence concerning some of the unfortunate remarks made by the Manager Cabin Services to the Grievor during the course of the morning of 20 May 2007. The Tribunal considers such conduct to be inappropriate and unprofessional for a person occupying a position of responsibility for personnel management. Unfortunately this annoyance appeared to the Tribunal to be reflected in the disciplinary process which was conducted almost entirely by the Manager Cabin Services.

The issue of a compulsory blood test to determine a blood alcohol level is of some concern to the Tribunal. It is accepted by the Tribunal that where reasonable grounds for requiring an alcohol test can be shown to exist it is implicit in the rights of management to be able to insist that the employee submit to such a test prior to dismissal. Even in the absence of express provisions in the Collective Agreement, an employer does have a right, if not a duty, to require that an employee undergo a medical examination (including a blood test) if the employer has reasonable grounds that would justify such action based on considerations such as the employee’s ability to perform his duty or concerns for the safety of the employee or other employees, or customers of the employer.

However, superimposed on that management right are the rights of the individual set out in the Constitution. What needs to be considered are the rights set out in section 25 (2) and section 37 of the Constitution.

Section 25 (2) gives an individual the right to freedom from medical procedures without informed consent. The Tribunal is satisfied that a blood test is a medical procedure which would require informed consent. As previously noted there was an element of coercion applied on the Grievor by the Manager Cabin Services which it may be concluded had the effect of vitiating the Grievor’s consent.

Section 37 provides an individual with the right to privacy which may extend to the results of medical tests conducted on the Grievor.

In this dispute the results of the blood test do not add a great deal to the misconduct described by the General Manager Customer Relations & Services in paragraph 2 of his Memorandum dated 18 July 2007.

AWARD

The summary dismissal of the Grievor was unjustified and unfair. The Grievor is to be re-instated with effect from the date of his dismissal. He is to be paid six months wages and the balance is deemed to be leave without pay.

He is to be issued with a Final Written Warning (Stage 3). The date of issue of that Final Warning is deemed to be the date of this Award.

DATED at Suva this 17 day of June 2008.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL