Fiji Public Service Association v Public Service Commission [2008] FJAT 33; Award 35 of 2006 (20 June 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 35 OF 2008

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

PUBLIC SERVICE COMMISSION

FPSA: Mr N Tofinga
PSC: Ms A Uluiviti

DECISION

This is a dispute between the Fiji Public Service Association (the Association) and Public Service Commission (the Commission) concerning the dismissal of Mr Joseva Saurara (the Grievor).

A trade dispute was reported by the Association on 7 May 2007.

The report was accepted on 20 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 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:

"- - - over the termination of employment of Mr Joseva Saurara, Senior Administration Officer, Ministry of Foreign Affairs & External Trade with effect from 13 December 2005 which the Association contends that the Commission’s decision to terminate Mr Saurara was procedurally wrong, unfair, too harsh and in breach of natural justice and therefore seek the member’s re-instatement without any loss of pay and/or benefits from the date of termination."

The Dispute was listed for a preliminary hearing on 14 December 2007. On that day the parties were directed to file preliminary submissions by 18 January and the Dispute was listed for mention on 30 January 2008.

The Commission filed its preliminary submissions on 18 January and the Association did so on 25 January 2008.

The Dispute was subsequently listed by consent for further mention on 29 February and 28 March 2008.

The Dispute was then listed for hearing on 8 April 2008. When the Dispute was called for hearing the Commission applied for the hearing, date to be vacated on the grounds that its principal witness was unavailable as he was overseas in Australia. After hearing the parties the Tribunal granted the application on terms that the Commission pay the sum of $20.00 to the Association as costs thrown away or wasted within seven days. The Dispute was relisted for mention on 25 April 2008.

The hearing of the Dispute commenced on 30 April and was adjourned part heard to 1 May 2008. On that day the hearing continued and was then further adjourned part heard to 6 May 2008. The hearing resumed on that day and then adjourned part heard to 13 May 2007 and then after evidence on that day was adjourned to 26 May 2008. On that day the evidence was completed and the parties then presented oral closing submissions. During the course of the hearing, each party called three witnesses to give evidence.

At the commencement of the hearing the Commission raised a preliminary issue concerning the Tribunal’s jurisdiction to settle the Dispute. After some preliminary observations concerning the merits of such an application, the Tribunal indicated to the parties that the issue was to be addressed in their closing submissions and the ruling in the matter would form part of the Award. The Tribunal proposes to deal first with the preliminary issue and then consider the dispute as set out in the Tribunal’s Reference.

The preliminary was first raised by the Commission in its preliminary submissions in paragraph 7 on page 9 where it is submitted that:

"Commission is seeking legal redress on this case. The facts of this case purported dispute point to a blatant attempt to abuse the process of the trade dispute mechanism. This matter originated from a lawful disciplinary proceedings against Mr Saurara.

Mr Saurara has exhausted the disciplinary process. The trade dispute mechanism cannot be used to circumvent the legal processes that are set down for disciplinary proceedings. The High Court has upheld this position. The judgment is attached"

The judgment that was attached to the Commission’s submissions and therefore presumably the judgment to which reference was made above was the High Court decision in The State –v- The Chief Executive Officer for Foreign Affairs and External Trade and Others ex parte Ratu Josefa Saurara (unreported Judicial Review No 2 of 2006 delivered 19 May 2006).

In that decision the High Court refused leave to the Grievor to apply for judicial review as he had not exhausted all available remedies with particular reference to the Grievor’s right to appeal to the Public Service Appeals Board.

In closing submissions Counsel for the Commission dealt at some length with this preliminary question of jurisdiction. The objection to the Tribunal’s jurisdiction was clarified and may be stated briefly. First, the Commission submitted that the acceptance of the report of the trade dispute by the Permanent Secretary was ill-considered.

It was claimed that the Permanent Secretary had not properly addressed his duty under section 4 (1) of the Trade Disputes Act Cap 97 in that he had not utilized section 4 (1) (a) in a considered manner.

Secondly, the Commission claimed that section 147 of the Constitution had the effect of vesting the Commission with responsibility for disciplinary issues in the public service. The Public Service Act 1999 gave effect to that constitutional provision by vesting the Commission and the appeals Board with sole authority for discipline in the Public Service. It was claimed that the dispute resolution machinery prescribed in the Trade Disputes Act had no application in this case.

The position of the Tribunal in relation to a submission concerning jurisdiction or the propriety of the reference has been stated many times. In essence it is that the Tribunal has no jurisdiction to examine the decision-making process which resulted in a trade dispute being referred to the Tribunal. Neither the Trade Disputes Act itself nor the reference from the Permanent Secretary in respect of this dispute bestows any jurisdiction to review or even examine the validity or legality of the reference.

In Fiji Electricity Authority Staff Association –v- Fiji Electricity Authority (Award No 24 of 1998 dated 23 December 1998) the then Permanent Arbitrator (J Apted) at page 6 observed:

"Under the Trade Disputes Act each separate trade dispute comes to the Tribunal by virtue of a reference from the Permanent Secretary for Labour and Industrial Relations. The terms of that reference prescribe the jurisdiction of the Tribunal to determine the facts and relevant law and to make an Award.

Under the Act, a union may report what it considers to be a trade dispute to the Permanent Secretary for Labour and Industrial Relations.

Subject to the provisions of the Act and the law generally, the Permanent Secretary is given a discretion whether to accept the report, and, also, in specified circumstances, to refer the dispute to the Tribunal for settlement. Before he can exercise his discretions in those ways, he must be satisfied that a "trade dispute" as defined in the Act, exists and that the union is competent to prosecute the underlying grievance.

In the exercise of these powers, he is subject to the supervision of the courts of law. If a party takes issue with his decision, the party should immediately seek the assistance of the court through judicial review of the Permanent Secretary’s decision. If the Permanent Secretary has exercised his discretion improperly, it is the court’s function to over-rule him, not the Tribunal’s.

The Tribunal, of course, has jurisdiction to decide on its own "jurisdiction" and will do so, if this is an issue before it. However, this will usually be exercised in relation to whether some matter falls within its terms of reference. But where the challenge is made in respect of what effectively are conditions precedent to the Tribunal having jurisdiction and which involve the exercise of a discretion by another decision–maker of co-ordinate standing, the Tribunal considers that the matter will usually be best resolved in a court of law."

As a result, unless and until the High Court indicates otherwise, the Tribunal assumes that the reference is regular and valid. As Permanent Arbitrator Semisi in Fiji Public Service Association –v- Airport Fiji Limited (Award No 24 of 2001 dated 30 August 2001) noted at page 7:

"- - - Therefore, once a dispute is referred to the Arbitration Tribunal, I must assume that the Permanent Secretary - - - had properly exercised his discretion within the parameters of the Act".

The Tribunal notes that the Permanent Secretary by letter dated 20 July 2007 addressed to the Association and copied to the Commission indicated that he had accepted the report of the present trade dispute. The Commission did not seek to challenge by way of judicial review that decision of the Permanent Secretary.

The Dispute was referred to the Tribunal by a Reference dated 5 December 2007. The parties were provided with a copy of the Reference at about the same time. Since that time the Commission has not sought to challenge the Reference by way of an application for judicial review.

The Tribunal rejects the Commission’s application in respect of the preliminary issue. The Tribunal will now deal with the dispute.

The Grievor commenced employment in the public service in January 1975 after working for seven years as an unestablished officer in the Ministry of Agriculture.

On 22 December 2003 the Grievor was appointed to the position of Second Secretary in the Fiji High Commission in India. On 6 July 2005 an incident in the High Commission premises involving the Grievor and a local Indian female employee by the name of Sarita Vaid (the complainant). It took the form of a physical confrontation between the two and was witnessed by another local Indian female employee by the name of Meghna Seli (the witness). Although the incident was not witnessed by the High Commissioner (Mr Luke Rokovada) he arrived in the room where the incident occurred very shortly afterwards having heard the complainant screaming and having been urged to intervene by the witness. The Tribunal accepts the evidence given by the High Commissioner that he could not get to the scene any quicker due to an important telephone call he was taking at the time.

As a result of the incident the complainant attended for a medical check-up at a local hospital on the same day. The Medical Report indicated that she complained of pain on the right side of the neck and headaches and back pain.

On examination swelling on the right side of the forehead was observed. A scalp haematoma of about 2cm was also observed. There were no external injuries such as abrasions or cuts on the skin surface. There were no bone injuries. The complainant was prescribed tablets.

On the next day the Grievor was requested by the High Commissioner to provide a written statement explaining the incident. This he did. Both the Complainant and the witness also provided written statements on 18 July 2005.

By memorandum dated 7 July 2005 the High Commissioner reported the incident to the Chief Executive Officer for Foreign Affairs and External Trade in Suva. Omitting formal parts that memorandum stated:

"I wish to bring to your attention an incident involving two members of our staff at the Fiji Mission yesterday, Wednesday, 6 July 2005.

The incident involves Mr Joseva Saurara, Senior Assistant Secretary, (Second Secretary) and Ms Sarita Vaid a locally engaged staff occupying the post of Secretary/Admin Assistant in which Mr Saurara physically manhandled and assaulted Ms Sarita Vaid in the office in the presence of Ms Meghna Seli, Secretry to the High Commissioner and myself when I was called to the scene to restrain Mr Saurara.

Mr Saurara saw me today to explain the situation and sought forgiveness and repentance for what he had done to Ms Sarita Vaid. I have asked him to give me his explanations in writing and these will be forwarded to your office.

I have also spoken to Ms Sarita Vaid and her mother who came to the office this afternoon with a Police Officer, Sub Inspector Dhananjay Pratap from the Hauz Khaz Police Station, New Delhi and apologized to them on behalf of the Fiji Mission. A copy of a letter of apology to Ms Sarita Vaid is attached.

I have told Mr Saurara that his physical abuse and manhandling of Mr Sarita Vaid is totally and completely inexcusable, intolerable and unacceptable by a member of staff of the Fiji High Commission and I will report the matter to your good office for appropriate disciplinary action against him.

Mr Saurara had displayed tendency in losing his cool and temperament on occasions against our former Chauffeur, Mr Joy Alexander (illegible) relieved of his appointment because he couldn’t work with Mr Saurara.

There is no guarantee that similar actions will not be repeated by Mr Saurara in future and I strongly recommend that appropriate action be taken to expedite his return to Fiji as early as possible.

Members of staff of the Mission are worried and concerned about their safety and I cannot guarantee their safety as long as Mr Saurara continues to work in the Mission."

Whilst still in India the Grievor received a letter dated 3 August 2005 which set out the details of two charges laid against him in respect of the incident. The letter stated:

"RE: DISCIPLINARY CHARGES

It is alleged that you, Mr Joseva Saurara, on 6 July 2005, whilst in the employment of the Fiji Government in the Fiji High Commission to India, physically mistreated Ms Sarita Vaid, the Secretary/Administrative Assistance in the Commission.

In accordance with section 7 of the Public Service Act – 1999, you are hereby charged with the following offences:

1. Charge

DISRECPECTFUL AND DISCOURTEOUS BEHAVIOUR:

Contrary to Section 6(3), Public Service Act 1999.

Particulars

JOSEVA SAURARA, that on 6 July 2005, in New Delhi, India, whilst in the employment of the Fiji Government as Second Secretary in the Fiji High Commission to India mistreated Ms Sarita Vaid, a member of the locally Engaged Staff at the High Commission, in a manner that is disrespectful and discourteous, contrary to Public Service Code of Conduct set out in section 6(3) of the Public Service Act 1999.

2. Charge

BEHAVIOUR CONTRARY TO THE GOOD REPUTATION OF THE STATE: Contrary to Section 6(13) of the Public Service Act 1999

Particulars

JOSEVA SAURARA, that ON 6 July 2005, in New Delhi, India, whilst an employee of the Fiji Government at the Fiji High Commission in India, assaulted Ms Sarita Vaid, a locally engaged staff of the High Commission, thus behaving in a manner that is contrary to the good reputation of the state, contrary to the Public Service Code of Conduct set out in Section 6(13) of the Public Service Act 1999.

In accordance with regulation 22(3) of the Public Service (General) Regulations 1999 you are to state in writing within (14) fourteen days from the date of receipt of this memorandum whether you admit or deny the charges stated above. You ought to provide an explanation of the incident alleged which you may wish considered on your behalf.

Should you fail to state in writing whether you admit or deny the charges within the requisite time you will be deemed to have admitted the above charges and may be levied one or more of the penalties laid out in regulation 22(1)(a) – (g) of the Public Service (General) Regulation 1999, subject to your being provided with an opportunity to address the Commission to regulation 22(2) of the said Regulations."

The Grievor returned to Fiji on 19 August 2005 having been recalled by the Chief Executive Officer in an earlier memorandum. He then submitted a further written response to the charges in a memorandum dated 23 August 2005. The Tribunal does not consider the Grievor’s recall as a penalty or punishment but rather an administrative necessity both for the Grievor’s safety and to enable the High Commission to deal with the incident.

It would appear that a disciplinary hearing had been fixed for 17 November 2005. In a letter dated 15 November 2005 to the Commission the Chief Executive Officer Foreign Affairs and External Trade wrote:

"I wish to advise that I had a meeting with Mr Joseva Saurara and his advocate Mr Rajeshwar Singh (Secretary PSA) today, 15 November 2005. At the meeting I gave a copy of the disciplinary charges that has been laid against Mr Joseva Saurara by me. Copies of supporting documents were also given to them.

I also advised them that given the matter of recall of the officer concerned, his years of service to the government, I was willing to recommend to the Commission that no further action be taken provided Mr Saurara is transferred to another Ministry where he could be usefully employed. He will of course be issued with letter of reprimand.

Mr Saurara and Mr Singh have agreed to consider the above and will advise this HQ on or before the hearing of 17 November 2005."

The Commission’s Minutes for the meeting on 17 November 2005 were admitted into evidence (ex 16) and stated:

"Chairman welcomed CEO, Foreign Affairs and External Trade to the hearing.

Mr Mataitoga, CEO, Foreign Affairs & External Trade informed the Commission that he had difficulty trying to locate Mr Saurara. He was informed by his wife that Mr Saurara had left his mobile phone at home and was in town. In fact the officer was informed and was aware of the hearing time and date.

Chairman informed CEO, Foreign Affairs & External Trade that the Commission has decided to proceed with the hearing and would not drop the charges. The Commission has decided that there should not be any negotiations with the Union after the charges have been laid.

Mr Mataitoga informed the Commission that Mr Saurara’s advocate, Mr Rajeshwar Singh is caught up in a meeting in Sigatoka and would not be able to attend the hearing. He sought clarification on who would be responsible for informing Mr Saurara on the next hearing because as prosecutor he should not be serving documents concerning his own charges. He added that Mr Saurara is currently on leave pending the determination of the disciplinary charges.

Chairman informed Mr Mataitoga that hearing will be deferred to the 9th December 2005.

CEO, PS informed the Commission that the CEO Foreign Affairs is requesting that the case be dropped. He said that the Commission had taken a stand on a similar case in the Ministry of Women. Once the CEO has charged an officer, the only authority to dispose of the case is the Commission. Once the Commission allows CEOs to dispose cases at their levels, favoritism, biasness and corruptions could arise.

Commission Decision

The Commission decided to defer the hearing to 09 December 2005."

The disciplinary hearing took place on 9 December 2005. The Grievor was present and was also represented by Mr Rajeshwar Singh from the Association. The Commission had before it the written statements relating to the incident and these were presented by the Ministry for Foreign Affairs. The Commission apparently asked the Grievor questions and heard from Mr Singh on the facts of the incident There was reference made by Mr Singh to the absence of the High Commissioner, the complainant and the witness, all of whom, it would appear Mr Singh wanted to question.

By letter dated the same date the Grievor was advised that the Commission had found him guilty of both charges. The letter stated:

"The Public Service Commission, at its meeting held on 09th December, 2005, had deliberated on the two (2) disciplinary charges laid against you by the Chief Executive Officer, Foreign Affairs & External Trade.

The Commission also took into consideration the oral and written submissions of your Union representative together with the oral and written submissions of the Chief Executive Officer, Foreign Affairs & External Trade. After considering all the facts before it, the Commission has found you guilty of both charges.

Before the Commission decides on the appropriate penalty to impose on you in accordance with Regulation 22 of the Public Service (General) Regulations, 1999, you are invited to appear before the Commission on 13th December, 2005 at 11.00 a.m. for mitigation.

Your attendance on the above date and time will greatly assist the Commission to finalize your case."

The mitigation hearing took place on 13 December 2005. Again the Grievor attended with Mr R Singh. It would appear that the mitigation started with Mr Singh alone as the Grievor was late in arriving for the hearing. During the course of the mitigation hearing a statement dated 12 December 2005 and signed by the Grievor was provided for the Commission’s consideration. However it should be noted that the statement dwelt primarily on the question of guilt, the Complainant and the High Commissioner. The Grievor chose to mention virtually nothing about himself. He certainly did not express any remorse for any involvement on his part in the incident. It should be noted that in his first statement dated 7 July 2005 the Grievor expressly stated at the end of the statement that he wanted to apologise "for this unexpected incident that may have brought disrepute."

By letter dated 13 December 2005 the Grievor was advised that his employment had been terminated with effect from 13 December 2005. The letter stated :

"The Public Service Commission, at its meeting held on 13th December, 2005 has considered your mitigation and decided that you be and you are hereby terminated from the Service with effect from 13th December, 2005 in accordance with Regulation 22(1)(a) of the Public Service (General) Regulations, 1999.

You have therefore forfeited all privileges and entitlements accrued to you during your term as a civil servant.

However, you are reminded of your right to appeal this decision to the Fiji Public Service Appeals Board in accordance with Section 25 of the Public Service Act, 1999 and the procedures on appeal under Section 26 of the same Act."

The Tribunal accepts the evidence from the Grievor that he did not receive this letter until 29 December 2005. The Tribunal also accepts that the Grievor first became aware of his dismissal when he read an article concerning the matter in the Fiji Times on 22 December 2005.

The Tribunal notes that the termination letter was dispatched from the Commission to the Ministry of Foreign Affairs on 16 December 2005 for delivery to the Grievor by the Ministry. There was no explanation offered by the Commission as to why the Ministry of Foreign Affairs had waited 13 days before delivering the termination letter to the Grievor.

The first question for the Tribunal is to determine whether there was sufficient material for the Commission to honestly and genuinely conclude on reasonable grounds that the Grievor had committed the acts which constituted misconduct and the subject matter of the two charges.

What the Commission did have before it was the first written explanation dated 7 July 2005 from the Grievor. This was the day immediately after the incident and therefore can be presumed to reflect the Grievor’s accurate recollection of what transpired the day before.

The first part of the statement dealt with the issue of missing obsolete visiting cards. This matter had caused the Grievor some concern and he had formed the view that the complainant was in some way involved in the matter.

More importantly paragraphs 12-19 dealt with the incident which occurred on 6 July 2005 and stated as follows:

"Wednesday 6th July, 2005

12. Again, Ms Sarita Vaid brought up the matter during the morning session, which at this stage was beginning to be insulting and degrading me of my status as a diplomat by a locally engaged staff on probationary appointment, a non-issue matter;

13. At about 1715hrs, when she was getting ready to go home, she approached me again for the same issue, still maintaining that I had allowed her to dispose the cards;

14. Her approach at this time had brought me a lot of anger that I stood up and told her to go outside and not to discuss further a non-issue matter;

15. I walked across to take her outside in the hope that it will solve the problem, as she was ready to leave when she decided to raise the matter with me;

16. At the spur of moment, she had intentionally or otherwise ripped my shirt pocket and demonstrated a "Taek wan do" action which she had at one time been a training member;

17. Ripping my shirt pocket and demonstrated a "Taek wan do" counter-attack, I had sensed that although Ms Sarita Vaid is a little girl, she is someone who has a big and aggressive approach, and would not be willing to accept that work responsibility and guidance in her inner feelings.

A hard hand fending off on her face and head weakened her grip on my tie and aggressive motives that I had to defend myself;

We employed Ms Smita Kamra, the first L.E.S and then Ms Meghna Seli, Ms Richika (Reliever), all had carried out the work well and were more transparent and accountable in their duties with a high and better team work, however, I would like to apologize for this unexpected incident that may have brought disrepute."

These paragraphs alone indicate that the Grievor’s behaviour amounted to misconduct. His feeling of having been insulted and his diplomatic status having been downgraded by a locally engaged female staff member does appear to have been an extreme reaction and unprofessional. He admitted that shortly before the incident he had became angry with the complainant for raising the matter again. Once again this is an unprofessional approach to an issue which obviously caused the complainant some anxiety. The Grievor admitted approaching the complainant to take her outside – whatever that might mean. If certainty is open to the interference that he intended to remove her physically if necessary.

The Grievor claimed that the complainant then ripped his shirt pocket and made a "Taek wan do" gesture. He described this as a counter attack which implied that it was in response to his actions. He described the complainant as a little girl. He admitted he applied a hard hand on her face and head to fend her as he claimed she had grabbed his tie.

The Commission also had before it the statement by the witness made on 18 July 2005. This statement also referred to the issue of the missing cards and then described what happened on 6 July 2005. Paragraphs 8-10 stated:

"8. "On Wednesday, 6 July 2005 as I was wrapping up my work and getting ready to leave, I once again heard some commotion between Mr Saurara and Ms Vaid in which Ms. Vaid had told Mr Saurara that she had taken the cards with his consent. Mr Saurara became very angry on hearing this and once again scolded her for blaming him.

9. Ms Vaid was still insisting to tell Mr Saurara she had not done anything wrong and had just followed instructions. On hearing this again, the matter got worse and Mr Saurara told Ms Vaid to "Get Out of the Office:. As Ms Sarita and I were leaving, Ms Sarita said something that Mr Saurara heard and came towards her angrily and pulled her from her hand and tried to drag her out of the office, which Ms Vaid tried to resist and tried to defend herself and the commotion further increased to the extent that Mr Saurara slapped Ms Vaid a number of times, pushed her so hard that she fell against the side table and further hit her badly.

10. On seeing the situation, which could not have been handled by me, I rushed to High Commissioner’s room to inform him and when came back to the room with Excellency, Mr Saurara was still hitting, Ms Sarita and she was crying for help. On intervention of the High Commissioner Mr Saurara left Ms Vaid."

There are sufficient similarities in the two statements to suggest that the Grievor had understated the extent of his involvement in the incident. The Tribunal notes that the statement made by the complainant was expressed in somewhat stronger terms and understandably probably overstated the full extent of the confrontation. However, the Tribunal is in no doubt whatsoever that there was sufficient material for the Commission to conclude that the

Grievor had used physical force against the complainant. The Tribunal rejects the claim that it was necessary for the Grievor to use that force in self-defence. Even his own statement did not allege that the complainant had actually struck him. To the extent that his shirt pocket might "otherwise" have been ripped, such an occurrence did not justify the subsequent physical force applied by the Grievor on the complainant. He described the complainant as a "little girl".

As a result the Tribunal is satisfied that the Commission did have justification for concluding that the Grievor had mistreated the complainant in a manner that was disrespectful and discourteous. The Tribunal is also satisfied that the Commission had justification for concluding that the Grievor assaulted the complainant and thus behaved in a manner that was contrary to the good reputation of the State.

The objection raised by Mr Rajeshwr Singh during the course of the disciplinary hearing concerned the Commission proceeding to deal with the Grievor without arranging for the complainant, the witness and the High Commissioner to appear at the hearing.

However having considered the evidence before the Commission and in the circumstances of this Dispute the Tribunal has concluded that the Grievor was not denied a fair hearing when the Commission proceeded to deal with the charges on the basis of the written statements. The Grievor was present and he was represented. All his written and oral explanations were before the Commission.

The Tribunal has concluded that the initial recommendation by the CEO Foreign Affairs was not binding on the Commission. The final disposition of the matter was for the Commission alone to decide.

The Tribunal is also satisfied that the penalty of termination of employment with immediate effect (summary dismissal) was within the range of penalties available to a reasonable employer acting reasonably in the circumstances of this Dispute. The Tribunal is satisfied that the misconduct was sufficiently serious to justify the penalty even taking into account the Grievor’s previous work history and length of service.

There is, however, one matter which is of some concern to the Tribunal. The manner in which the decision to terminate the Grievor’s employment was conveyed to the Grievor was inexplicably delayed. It was both inappropriate and most unfair that the Grievor first became aware of the Commission’s decision in a newspaper article some nine days after the mitigation hearing and still some seven days before he received his termination letter.

In Central Manufacturing Company Limited –v- Yashni Kant (unreported Civil Appeal No 10 of 2002 delivered 24 October 2003) the Supreme Court of Fiji stated at page 21:

"In our view the Court of Appeal correctly held that there is an implied term in the modern contract of employment that requires an employer to deal fairly with an employee, even in the context of dismissal. - - - It does extend, however, to treating the employee fairly, and with appropriate respect and dignity, in carrying out the dismissal.

In this case the Tribunal is satisfied that the dismissal was effected in a manner that was unnecessarily humiliating to the Grievor and as a result the Commission was in breach of that implied term.

The Tribunal considers it appropriate to award the Grievor three months salary as compensation for the manner in which the Commission’s decision was conveyed to him. It was in breach of the implied term that he be dealt with fairly and in good faith in the context of dismissal.

AWARD

The Employer had sufficient grounds for honestly and genuinely concluding that the Grievor had committed the acts which constituted misconduct. The misconduct justified findings of guilt in respect of the two charges laid against the Grievor. The penalty of summary dismissal was reasonable in the circumstances of this dispute.

The dismissal was not procedurally unfair and therefore there was no denial of natural justice.

The Commission breached the implied term requiring the Grievor to be treated fairly in the context of dismissal. The Grievor is to be paid three months wages for the breach.

DATED at Suva this 20 day of June 2008.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL