Fiji Public Service Association v Land Transport Authority [2008] FJAT 31; Award 33 of 2008 (1 June 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 33 OF 2008

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

LAND TRANSPORT AUTHORITY

FPSA: Mr N Tofinga
LTA: Mr S Waqainabete

DECISION

This is a dispute between Fiji Public Service Association (the Association) and Land Transport Authority (the Authority) concerning the termination of employment of Mr Esala Drivata (the Grievor).

A trade dispute was reported by the Union on 18 January 2007.

The report was accepted on 16 April 2007 by the Permanent Secretary who referred the Dispute to Disputes Committee.

Subsequently the Minister authorized the Permanent Secretary to refer the Dispute to an Arbitration Tribunal for settlement in accordance with the provisions of the Trade Disputes Act Cap 97.

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

"- - - for settlement over the dismissal of Mr Esala Drivata by the Authority. The Association contends that the dismissal is unfair, wrongful, procedurally unfair and in breach of Articles A, B, D & O of the Collectivre Agreement and that prior to his termination, the Authority failed to pay his 2004, 2005 and 2006 COLA payment. The Association seeks his immediate re-instatement without any loss of pay and/or benefits and that all the remunerative arrears accumulated through the non-payment of COLA are paid forthwith".

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

On 21 September the parties were granted an extension of 14 days to file their preliminary submissions and the Dispute was relisted for mention on 19 October 2007. The Association filed its preliminary submissions on 3 October 2007.

The Dispute was then listed by consent for further mention on 30 November, 14 December and 17 December 2007.

On 17 December the Tribunal directed that in the event that the Dispute had not been settled by the parties by the filing of a signed terms of settlement within 21 days, the Authority was required to file its preliminary submissions by 23 January 2008. The Dispute was listed for mention on 30 January 2008.

On 30 January there was no appearance by or on behalf of the Authority. The Dispute was relisted for mention on 29 February 2008. On that day the Authority was directed to file its submissions within 14 days and by consent the Dispute was relisted for mention on 28 March 2008. The Authority eventually filed its preliminary submissions on 4 April 2008.

The hearing of the Dispute commenced on 21 May 2008 in Suva and was completed the following day. The Authority called two witnesses and the Association called the Grievor to give evidence. At the conclusion of the evidence the parties presented closing oral submissions.

The Grievor commenced employment with the Authority sometime prior to 2 October 2002. An engagement sheet indicted that his date of entry was 2 October 2002. However the Grievor gave evidence that he had commenced work with the Authority prior to that date. The Grievor worked a five day week from 7.30am to 5.00 pm each day.

The engagement sheet described his job as casual cleaning duties outside. Various other documents described him as a casual employee who performed various duties.

At this stage it should be noted that the Employment Act Cap 92 defines a casual employee as:

"any employee the terms of whose engagement provide for his payment at the end of each day’s work and who is not engaged for a longer period than twenty-four hours at a time".

Clearly the Grievor’s employment status was not that of a casual employee. He should have more appropriately been designated as a temporary employee since he did not occupy an establishment position when he commenced employment. Upon commencement he was surplus to establishment. He was paid weekly and received a weekly pay slip. The slip for the period ending 11 October 2006 indicated that a deduction was being made in respect of membership of the Association. The Tribunal accepts that the Grievor became a member of the Association in 2005.

Upon becoming a member of the Association, the relevant terms and conditions of employment set out in the Collective Agreement between the parties became an implied condition of the Grievor’s contract of service pursuant to section 34 (7) of the Trade Disputes Act. The Collective Agreement that applied to the Grievor was the Agreement that covered the terms and conditions of employment of weekly paid employees. As a temporary full time employee the Grievor was a weekly paid employee of the Authority.

It should be noted from the outset that the termination of employment of the Grievor was by way of notice and was neither a summary dismissal nor a disciplinary termination.

By memorandum dated 31 October 2006 from the Authority’s Manager Human Resources, the Grievor was advised that his employment was being terminated in the following terms:

"The Land Transport Authority is giving seriously consideration over the current establishment and has identified positions that may not be needed in the future giving reasons why they should be trained to do other work or be given redundancy packages. In the process, it is vital for the Authority to first terminate temporary appointments as your continual employment will not do justice to permanent employees to be given redundancy offers. You will realize that all our cleaning of offices are being outsourced to cleaning services, as well as our ground works and security jobs. In light of this, we write to advise you 2 months in advance that your appointment will be terminated with effect from 31 December 2006.

Thank you very much for all your efforts in assisting LTA with the odd jobs you were requested to do over the last years".

The Tribunal is required to determine whether this termination of employment was either wrong or unfair. It was wrong if it did not comply with the provisions of the Collective Agreement or if there were no provisions in the Collective Agreement, then it was wrong if it did not comply with the provisions of the Employment Act Cap 92.

The termination was unfair if it was done in bad faith. In other words, the decision to terminate the Grievor’s employment must have been made in good faith or honestly.

Clause 39 of the Collective Agreement simply states that the termination of services of weekly paid workers is as applicable to salaried employees. What that means is that the provisions relating to termination of service that were contained in that part of the Collective Agreement that applied to salaried employees were also to apply to weekly paid employees.

The employment relationship may be brought to an end as a result of summary dismissal as a disciplinary penalty, as a result of termination by notice or payment in lieu of notice, as a result of redundancy, on account of medical reasons, or as a result of retirement or resignation.

All of those matters are dealt with in the Collective Agreement for Salaried Employees, except termination by notice or payment in lieu of notice.

As the Agreement is silent on the termination of service by the giving of notice or payment in lieu of notice, the relevant provisions of the Employment Act apply to the parties. The Tribunal is satisfied on the evidence before it that the Authority complied with the appropriate requirements specified in section 24 of the Employment Act.

The Reference also requires the Tribunal to determine whether the Authority breached Articles A B D & O of the Collective Agreement.

At the outset the Tribunal should indicate that the General Conditions set out on pages 2 to 4 of the Collective Agreement have application to both Part 1 and Part II of the Agreement. It is apparent that the two parts form the one Agreement as all the parties have signed the Memorandum. The parties to the Agreement include the Fiji Public Service Association, the Viti National Union of Taukei Workers and the Public Employees Union. Those unions together cover both salaried employees and weekly paid employers.

Article A provides for management rights to be exercised in accordance with the provisions of the Agreement.

Article B provides for recognition of the Unions as the representatives and agents of the employees for the purposes of collective bargaining.

Article D provides for prior notice to be given to the Unions of any charge in the terms and conditions of employment to enable negotiations to take place.

Article O provides that "in the event of major organization restructuring or redundancies being contemplated, the Authority shall notify the Association as early as possible and no later than six months so that consultations and negotiations shall take place between the parties’".

So far as Article O is concerned, the Tribunal has concluded that there are two separate circumstances specified when the Authority must give notice to the Union. First, when a major organization restructuring is being contemplated and secondly, when redundancies are being contemplated.

On the evidence before it, the Tribunal is satisfied that the Authority has not complied with Articles B D and O.

There was no communication between the Authority and the Association concerning the Grievor prior to the date of the termination memorandum.

Having considered the evidence, the Tribunal is also satisfied that the Authority did not act in good faith when it terminated the Grievor’s employment in the memorandum dated 31 October 2006. Although two months notice was given in that memorandum, and although that was a considerably longer period of notice than was required by the Employment Act, the memorandum did not state the real reason why the Grievor’s employment was being terminated. The Authority’s former Manager Human Resources admitted this fact in her evidence before the Tribunal. An internal memorandum dated 14 August 2007 prepared by the Manager Human Resources also confirmed that the correct reason was not stated in the termination letter.

On 1 September 2005 the Authority entered into an agreement with Kleanworks Services Limited for cleaning services to be undertaken at the Authority’s Valelevu, Nausori, Lami and Suva premises.

Prior to that date, the Authority had employed a total five cleaners. Four were permanent staff and the Grievor was the fifth cleaner.

The two permanent cleaners who were employed with the Grievor to clean the premises specified in the contract were retrained and redeployed to the enforcement section. The cleaners in Lautoka and Labasa were not affected by the agreement. The Grievor continued to be employed on the same terms and conditions after 1 September 2005 performing a variety of miscellaneous duties.

It should be noted at this stage that the successful tender for the cleaning contract, Kleanworks Services Limited, was owned by two brothers as shareholders, one of whom was at the time the Authority’s General Manager Finance.

One of the duties performed by the Grievor after 1 September 2005 was as a driver. By memorandum dated 3 November 2005 the Authority’s Regional Manager Central Eastern informed the Grievor that he was appointed as an authorized driver to perform driving duties when the need arose.

As a result of a request from the then Manager Human Resources in a memorandum dated 23 February 2006, the Regional Manager Central Eastern stated on 3 March that the Grievor "is always occupied throughout the day". He also provided a list (prepared by the Grievor) of the duties performed by the Grievor on a daily basis.

Between 1 September 2005 and 31 December 2006 the Grievor was the only temporary employee of the Authority. However the evidence established that during that time the Authority had employed casual employees from time to time to undertake miscellaneous duties.

It would also appear that during this period an established driver’s position became vacant and this had resulted in the Grievor being required to perform driving duties.

The reason given by the Manager Human Resources for terminating the Grievor’s appointment was that he was doing work that others were paid as permanent workers to do. The Tribunal did not consider the evidence given by the Manager Human Resources to be convincing on this point as the material before the Tribunal clearly indicated that the Regional Manager had endorsed the Grievor’s daily work programme.

The Grievor had attended a customer service skills workshop in March 2004 and a defensive driving course in April 2001. He had been awarded Certificates upon the successful completion of both courses.

The Grievor had performed a number of duties at the request of the Regional Manager over a number of years. He had demonstrated a flexibility and a willingness to carry out those duties to the required standard. He had been retained by the Authority for over 12 months following the outsourcing of the cleaning services. His continued employment had been endorsed by the Regional Manager. There was work for the Grievor and there was a vacancy.

As previously stated and for all of the above reasons the Tribunal has concluded that the Authority did not act in good faith.

On the evidence before the Tribunal there is no reason why the Grievor would not continue to be an effective member of the Employer’s team. Re-instatement is appropriate.

The claim in respect of COLA payments for 2004, 2005 and 2006 was withdrawn by the Association during the course of the hearing.

AWARD

The termination of employment of the Grievor by notice in its memorandum 31 October 2006 was in breach of the Collective Agreement and in bad faith.

The Grievor is to be re-instated and paid his wages from the date of the termination of employment.

The claim for COLA payments was withdrawn.

DATED at Suva this 1 day of June 2008.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL