Fiji Bank and Finance Sector Employees Union v Fiji National Provident Fund [2008] FJAT 36; Award 38 of 2008 (30 June 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 38 OF 2008

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI BANK AND FINANCE SECTOR EMPLOYEES UNION

AND

FIJI NATIONAL PROVIDENT FUND

FBFSEU: Mr P Rae with Mr D Singh
FNPF: Mr N Prasad

DECISION

This is a dispute between Fiji Bank and Finance Sector Employees Union (the Union) and Fiji National Provident Fund (the Employer) concerning the dismissal of Mr A Vinod (the Grievor).

A trade dispute was reported by the Union on 30 July 2007.

The report was accepted 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 15 January 2008 with the following terms of reference:

" - - - for settlement over the suspension on 17 April and subsequent dismissal on 13 July 2007 of Mr Ahbineshwar Vinod over allegations of breaching FNPF HR Policy which actions the union views as harsh, unjust and unfair and in breach of the Disciplinary Procedures of the Collective agreement. Therefore the Union seeks Mr Vinod’s re-instatement without loss of pay and benefits.

The Dispute was listed for a preliminary hearing on 30 January 2008. On that day the parties were directed to file preliminary submissions within 21 days and the Dispute was listed for mention on 29 February 2008.

The Employer filed its preliminary submissions on 25 February and the Union did so on 27 February 2008.

The Dispute was listed by consent for further mention on 28 March 2008. The Dispute was then listed for hearing on 2 April 2008.

When the Dispute was called for hearing on 2 April 2008, Counsel for the Employer applied for the hearing date to be vacated. The basis of the application was that the Employer had only recently instructed legal practitioners to represent it in the Dispute and there had been insufficient time to properly prepare for the hearing. After hearing the parties the Tribunal granted the application on terms that the Employer pay to the Union the sum of $50.00 and to the Ministry the sum of $500 as costs thrown away or wasted within 21 days. The Dispute was relisted for mention on 25 April 2008.

The hearing of the Dispute commenced on 27 May 2008 in Suva. The hearing was adjourned part heard and continued on the following day. Again the hearing was adjourned part heard to 12 June and continued on 19 June and 23 to 25 June 2008. During the course of the hearing, the Employer called four witnesses and the Union called the Grievor to give evidence. At the conclusion of the evidence the parties presented closing oral submissions on 26 June 2008.

At the time of his dismissal the Grievor had been employed by the Fiji National Provident Fund (the Employer) for 19 years. At the time of his dismissal he was the Benefits Team Leader at the Employer’s Lautoka Office. He had originally been recruited in Suva and had been transferred to the Lautoka Office four years prior to his dismissal. In his team there were four processing officers who reported directly to the Grievor and there were a further two employees in the mail room who were also in the Grievor’s team. Neither the Grievor nor any of his six team members were customer service officers.

The Tribunal accepts that the Grievor’s desk was located in the back processing room which was separated from the counter area and the four customer service officers whose desks were located in a row behind the counter.

A member of the Provident Fund by the name of Hitesh Kumar Singh died on 17 June 2006. He was survived by his wife Uma Wati, his son Rohitesh Singh and his daughter in law Arunesh Nandini.

The subject matter of the Dispute relates to events that occurred at the Employer’s Lautoka Office on 5 and 6 July 2006 and which resulted in the sum of $3000 being withdrawn from the then decreased member’s account.

The Tribunal accepts that at 9.42 am on 5 July 2006 a transaction was registered on the computer system at Lautoka through the log in of one of the customer service officers by the name of Teai. The Tribunal has concluded on the balance of probabilities that not only was Teai’s log in used but also that Teai’s PC was used to register the transaction.

The screen print out showed that the Registration Clerk was Teai and that the transaction was a request for a partial withdrawal of $3000.

On the evidence before it, the Tribunal is satisfied that there was also a paper application for this transaction. In reaching this conclusion the Tribunal notes that the Disciplinary Committee had before it evidence to that effect from the payments clerk, (Usha Sharma), Mr J Konrote (external manager) and the Grievor. The Tribunal also accepts that the external manager at Lautoka had approved the paper application after the transaction had been registered in the computer system, but cannot determine when exactly that approval had been given.

On the same morning the surviving family members of the deceased member attended at the Lautoka Office to advice the Fund of the death of the member. The family was attended to by one of the customer service officers by the name Ms Shainaaz Bano There are a number of issues that arise from these two occurrences.

One issue is at what time did the family members go to the Employer’s Lautoka Office on 5 July 2006 to report the death of the deceased member and did they do so before the application for a partial withdrawal of $3000 was registered at 9.42 am through Teai’s log in on Teai’s PC.

In her statement made on 27 March 2007 Ms Bano indicated that she could not recall whether it was morning or afternoon when the family brought in the Advice of Death form. However, in the previous sentence of her statement Ms Bano stated that she was the person "who received the Indian lady who had bought in the Advice of Death on that morning"’.’

In their statements dated 30 January 2007 neither the deceased’s widow nor his son referred to a particular time when they went to FNPF on 5 July 2006. However in his "Additional Statement" dated 8 March 2007 the deceased member’s son gave more detailed information when he stated:

" - - - after informing Shainaaz about the death information we were given these AOD forms. I then filled up this AOD form and gave it to Shainaaz. Together with me on that particular day was my mother Uma Wati and my wife Arunesh Nandini. I recalled this was sometime just before 12.00pm. On the form I put the date as 5 July 2006.

The son’s wife made a statement dated 30 April 2007. In her statement Arunesh Nandini stated, concerning the visit to the FNPF Office on 5 July 2006, that :

"- - - I with my husband accompanied my mother in law to FNPF Building in Lautoka with the notification of death. The recipient at the counter told us that we have to fill a FNPF form, with notification of death, my mother in law’s marriage certificate and my father-in-law’s birth certificate. On 5 July, I can clearly recall the date because my mother in law was crying from the morning and she stated that it was her wedding anniversary and this year her husband was not with her. So, on that day we came to FNPF building and we met a Indian girl on the counter. She gave her name as Shaynaz and she also stated that we need to bring the new certificates as the marriage certificate and the birth certificate were the old ones. The one we had given to her with the filled form. As we were getting late we went back, came back on 6 July and got the new ones, all original ones and gave it to Shaynaz as Shaynaz had stated the day before to come straight to her and she had also given her phone contact."

In his statement dated 12 April 2007 the Grievor indicated that he had no recollection of seeing the family or any member of the family on that day.

In order for the visit by the family members to the FNPF Lautoka Office on 5 July 2006 to have been the trigger for the fraudulent paper application and subsequent registration on the computer system for a $3000 partial withdrawal (in the deceased member’s name) it would have had to take place some time prior to 9.42 am on that morning. On the evidence that was before the Disciplinary Committee it would seem on the balance of probabilities that that was not the sequence of events.

The second issue arising out of the events that occurred on 5 July 2006 was whether the Grievor was present with or near Ms Bano when she attended to the family members on that day.

In her statement Ms Bano stated that:

"Whilst serving the member Avinash (the Grievor) was with me. Why he was with me was because we were supposed to have tea together."

At the outset it should be noted that not one of the family members made any reference to having seen the Grievor on 5 July 2006 nor for that matter did any family member make any reference to having had any contact with the Grievor at any time. It was quite clear from the contents of their statements that they did not know the Grievor.

It would appear that when the Grievor made his statement he was not expressly asked to comment on the assertion that he was with her because they were supposed to have tea together. In relation to whether he was with her for any purpose at all, he stated that he couldn’t remember.

At the hearing before the Tribunal the Grievor stated that he had a fixed morning tea time at 10.15am. He also stated that the customer service officers have a roster for tea breaks that started from 9.30am onwards. The Lautoka Office opened at 8.30am for business. The Grievor stated that if Ms Bano was rostered to have a tea break at 10.15am she would come to his desk which was in a separated part of the building.

It should also be noted that if Ms Bano was correct about the Grievor’s presence at the time the family were at FNPF, then the Grievor must have been waiting to have a tea break with Ms Bano well before 9.42 am. On the balance of probabilities this is also most unlikely.

A third issue is whether the Grievor knew the deceased. Ms Bano, in her statement, claimed that the Grievor had told her that he knew the deceased. The Grievor was asked to comment on this assertion when he made his statement on 12 April 2007 and he replied:

"I can’t even recall the deceased’s wife".

There was no other evidence before the disciplinary committee concerning the Grievor’s knowledge of the deceased. Certainly none of the family members gave any indication at any stage that either they or the deceased knew the Grievor.

Ms Bano in her statement also made a number of assertions concerning a conversation between her and the Grievor on 5 July 2006. The Grievor denied those assertions in his statement. The Grievor also denied Ms Bano’s assertions concerning a conversation between the two of them on about 22 March 2007.

The screen print out indicated that the application for the partial withdrawal of $3000 was screen approved by the Grievor on 6 July 2006. Although the Grievor was questioned about this screen approval during the course of his statement, his answers were inconclusive as it appeared he was not shown a copy of the screen print out and could not recall what his delegations were.

From the material before the Tribunal it would appear that the Grievor did at the relevant time have the necessary delegation to screen approve a partial withdrawal of $3000.

It should be noted that the transcript of the recording of the Grievor’s evidence before the disciplinary hearing was not included in the Employer’s material. The explanation offered by the Human Resources Manager was that it had been deleted in error. For the same reason the evidence given by Mr Konrote, the payments clerk Usha Sharma, Teai Seru and Maika Ledua Soqoidaveta was not included in the Employer’s material.

At the Tribunal hearing the Grievor stated in his evidence that he only screen approved the registered transaction after he had received the paper application approved by Mr Konrote. The Grievor confirmed that he gave the same evidence at the disciplinary hearing. He also stated that Mr Konrote gave evidence to the same effect. The Tribunal is satisfied that the Employer was presented with this evidence at the disciplinary hearing.

It would appear that after the Grievor screen approved the registered transaction the paper work was taken to the payments Clerk, Usha Sharma.

The Tribunal accepts the evidence given by the Grievor at the hearing before the Tribunal that Usha Sharma had told the disciplinary hearing that she would not have proceeded to process the application unless there was an approved paper application as well as a screen approval. This was consistent with the contents of her statement dated 10 May 2007.

Once the payments clerk had completed the procedures and transmitted the funds by electronic transfer to the ANZ Bank holding account the ANZ Bank then confirmed electronically that the transfer had been effected. The Electronic Funds Transfer letters to the approved applicants were printed and signed on 6 July 2006 by Maika Soqoidaveta, one of the customer service officers. It was not made known to the Tribunal what evidence the disciplinary hearing had before it concerning the computer generated letter that actually advised the approved applicant that the funds were available for collection from the ANZ Bank.

The statement dated 30 April 2007 by Mr Soqoidaveta indicated that he believed that someone had used his login and his PC to generate the letter for this transaction. He also stated that the signature on the confirmation letter to the Bank was not his.

By a letter dated 14 February 2007 the ANZ Bank provided the following information about the transaction :

"We refer to the above request in providing details of a payment that was made to one of your members namely Hitesh Kumar Singh s/o Raghunandan Singh, FNPF membership number 0510189.

The Batch was received and processed on the 6th of July 2006, Batch total: $96,080.03 and the payment of $3000 was made on the 10th July 2006 at our Lautoka Branch.

Please find attached are copies of EFT Payment Letter.

- - - ."

The copy letter provided by the ANZ Bank was addressed to the deceased at his PO Box address. There was a receipt signature on the letter which purported to be the deceased’s signature. It would appear that whoever withdrew the funds on 10 July 2006 did so with the additional assistance of a brief identity letter dated 6 July 2006 which stated:

"To Whom it May Concern:

This is to confirm that Hitesh Kumar Singh is a registered member of the Fiji National Provident Fund with membership number 05101 89 or EJ 189".

The signature on the identity letter appeared to be the same as the signature on the EFT letter addressed to the deceased. The signatures purported to be those of Mr Soqoidaveta. He claimed that they were not his signatures.

It should be noted however that there was no material to link the Grievor to anything that transpired after he had approved the batch prepared by the payments clerk.

The Tribunal notes that the EFT letter to the deceased member did contain a number of references that were consistent with the paperwork. The deceased’s membership number was correct. The cheque number was the same as appeared on the payment enquiry. The withdrawal number was also correctly shown.

The family eventually became aware of the shortfall in the deceased member’s account when they attended at the Lautoka Branch and were once again attended to by Ms Bano. The evidence concerning what actually happened in November 2006 when the family were at the Lautoka Office was confused and inconsistent. In particular Ms Bano’s evidence to the Tribunal was not convincing as her memory did not appear to be reliable and there were inconsistencies in her evidence and with the written statements made by the family members and their evidence before the disciplinary hearing.

In any event the Employer’s Acting Ethical Standards Officer (Mr I Vukialau) was directed by the Principal Prosecuting Officer (Mr P Chand) to investigate the partial withdrawal of $3000 from the account of a deceased member.

After taking a number of statements over a period of time, a report was eventually prepared by Mr Vukialau. The investigation commenced on about 30 January 2007 when the investigator went to Lautoka to take statements from the widow and the deceased’s son. Although the report is undated, it would appear that it must have been completed some time after 12 April 2007 that being the date on which the Grievor made his statement to the investigator and prior to 17 April 2007 that being the date of the letter advising the Grievor of the charges laid against him.

By letter dated 22 March 2007, the Grievor, Ms Bano and Teai Seru were advised that they were suspended pending investigation. Each letter was identical and stated :

"This is to confirm that the Fund has received a formal report against you after conducting an investigation of an allegation for fraud at the Lautoka FNPF Office on the 05th of July 2006.

You are hereby suspended with full pay for 21 days effective from 4.00pm Friday the 23rd of March 2007 for further final investigation.

This letter also serves to inform you that depending on the findings of the investigation a Disciplinary Hearing will be conducted whereby you will also be accorded the right to engage an official of your Union to represent you."

The three then made written statements. Ms Bano made her statement on 27 March, Mr Seru made his on 28 March and the Grievor made his statement on 12 April 2007. Reference has already been made to the statements made by the Grievor and Ms Bano. In his brief statement Mr Seru denied any knowledge of the registration of the $3000 withdrawal on the computer system.

By letter dated 17 April 2007 the Grievor was formally charged with four offences. The letter stated:

"This is to inform you that upon completion of the internal investigation, I as Acting Chief Executive Officer, find that you are in breach of the Fiji National Provident Fund Act Cap 219 and the HR Manual Policy and I make the following charges against you:-

CHARGE 1

You Avinash Vinod did on the 6th day of July 2006 being an employee of the Fiji National Provident Fund acted in breach of Section 49 (1) (a) (ii) of the Fiji National Provident Fund Act

Cap 219 by producing a pre-retirement partial withdrawal application for the sum of $3,000 from the Fiji National Provident Fund account of Membership number 0510189 in the name of Hitesh Kumar Singh knowing the same to be false in material particular.

CHARGE 2

You Avinash Vinod did on the 6th day of July 2002, being an employee of the Fiji National Provident Fund acted in breach of policy 14.2.i of the HR Manual Policy by fraudulently and without the claim of right withdraw the sum of $3,000 from the Fiji National Provident Fund account of Membership number 0510189 in the name of Hitesh Kumar Singh with intent to permanently deprive the member thereof.

CHARGE 3

You Avinash Vinod did on the 6th day of July 2006, being an employee of the Fiji National Provident Fund acted in breach of policy 13.2.2 (l) (ii) of the HR Manual Policy by dishonestly withdrawing the sum of $3,000.00 from the Fiji National Provident Fund account of Membership number 0510189 in the name of Hitesh Kumar Singh with intent to commit theft.

CHARGE 4

You Avinash Vinod did on the 6th day of July 2006, being an employee of the Fiji National Provident Fund acted in breach of section 30 (1) of the Fiji National Provident Fund Act Cap 219 by authorizing and screen approving the withdrawal in the sum of $3,000 from the Fiji National Provident Fund account of Membership number 0510189 in the name of Hitesh Kumar Singh without the due delegation of the Board.

TAKE NOTICE that you are to state in writing to the Chief Executive Officer within 7 days and to provide an explanation whether you admit or deny the charges made against you, should you wish to do so. Any written reply by you will be referred to the Disciplinary Committee.

TAKE FURTHER NOTICE that you are now suspended on half pay until the final determination of the disciplinary hearing.

It should be noted that the Grievor was advised that he was to be suspended on half pay. There was no indication in the letter as to the basis for that decision. The suspension had initially been imposed on full pay to enable further final investigations. The Grievor had not up to 17 April 2007 been dealt with by a disciplinary committee and the presumption of innocence continued to apply even after the Grievor had been formally charged.

Ms Bano was charged with three offences in a letter also dated 17 April 2007. Her charges were in identical terms to the first three charges laid against the Grievor. She was not charged with the fourth offence. Mr Seru was not charged with any offence as the investigator (Mr Vukialau) had indicated that he was "ruled out". He was issued with a formal written warning on 18 April 2007.

The letter dated 17 April 2007 was delivered to the Grievor personally at his home by one of the Employer’s drivers. At the same time the Grievor also received 14 documents. Receipt was acknowledged by the Grievor and dated 17 April 2007. The report prepared by Mr Vukialau did not appear on the list.

By letter dated 20 April 2007, the Grievor responded to the charges as follows:

"I wish to reply to the charges that has been laid against me.

Charges 1-3

I deny producing a pre-retirement partial withdrawal form for the sum of $3000 from the account of Hitesh Kumar Singh membership number 0510189 and/or withdrawing the sum of $3000.00 from the account of membership number 0510189 as stated.

I have requested to see the said withdrawal form but it has so far not been shown to me.

Charge 4

As I can recall in my every day work function I have authorized many on screen processing of withdrawals for payment but only on confirmed approvals from the External Manager (hard copy). Those entries have been accepted by the system. The applications that are beyond my delegation are rejected for referral to the manager.

As I would like to assist FNPF in this matter I would like to see the withdrawal form and suggest that the identity of the person presenting the withdrawal to ANZ be obtained from the bank. They might have a record of the identification given or may also have some video record of customers coming or going.

I request that this matter be finalized as this false accusation is adversely affecting me."

The Grievor was advised by letter dated 24 April 2007 from the Employer that his response had been received. He was also informed that a disciplinary hearing was scheduled for 30 April 2007. He was informed that disciplinary action might follow and that he could be represented by a union official.

The Tribunal accepts that the disciplinary hearing commenced on 30 April for the purpose of dealing with preliminary issues. The Tribunal also accepts that the Grievor and/or his union representative received a copy of Mr Vukialau’s report on that day.

On 1 May 2007 the Union received two statements from the Employer which had not been served on the Grievor on 17 April 2007. These were the statements of Maika Soqoidaveta and Arunesh Nandini both dated 30 April 2007

At this stage the Tribunal notes that by letter dated 24 April 2007 the Union wrote to the Employer about its concerns arising out of the Grievor and Ms Bano having been charged with offences concerning the missing $3000.

In particular the Union raised three issues. First, the basis of the charges under the FNPF Act. Secondly the basis of the charges under the Employer’s HR Policy Manual. Thirdly, the decision to suspend both employees on half pay from 17 April 2007.

It would appear that the disciplinary committee heard evidence on 4 May and then resumed on 11 June for further evidence. The mitigation hearing took place on 3 July 2007.

There was a partial transcript of the Grievor’s disciplinary hearing produced at the Tribunal hearing. There were 17 pages of typed questions and answers. Two of those pages were duplicated (pages 86 and 88, pages 87 and 89). The material covered the evidence given by the deceased’s wife and his daughter in law with only some of the evidence given by his son.

A written report of the findings of the djsciplinary committee was subsequently prepared and signed by the three committee members. The report was forwarded to the Acting CEO on 26 June 2007.

The Committee concluded that charge 1 should be withdrawn as it related to an offence under the FNPF Act and should be dealt with in the courts.

The Committee also concluded that charge 4 should be withdrawn for the reason that:

"At the time of the screen approval Avinash as Team Leader Member Services had the access and delegation to screen approve a pre-retirement partial withdrawal after the Manager had approved the hard copy of the withdrawal form".

The Tribunal has no hesitation in concluding that the disciplinary committee did have at its disposal sufficient material for it to genuinely and honestly conclude on reasonable grounds that the Grievor had screen approved within his delegation a pre-retirement partial withdrawal of $3000 from the deceased member’s account after the external manager Mr Konrote had approved the paper application. It was never suggested that the Grievor had the necessary delegation to approve the paper application and in view of Mr Konrote’s evidence it was not open to the disciplinary committee to form any conclusion that the Grievor had approved the paper application.

It should be noted that at the time of the incident in July 2006, the Grievor was Team Leader of the Benefits section, not Member Services as the Committee’s report stated. The Grievor gave evidence at the Tribunal that at the time of the incident a Ms Rosalyn Singh was team leader Member Services. She was in fact one of four employees who formed the member services team, all of whose desks were in a row behind the counter. The other three were Ms Bano, Mr Seru and Mr Soqoidaveta. None of this evidence was challenged during the course of the Grievor’s cross examination. This was material which was known or ought to have been known by the disciplinary committee.

The disciplinary committee found the Grievor guilty of the offences in charges 2 and 3. There was not a great deal of difference in the substance of the two charges. They both alleged that the Grievor had withdrawn $3000 from the deceased member’s account. Charge 2 alleged that the withdrawal was fraudulent with the intent to permanently deprive and charge 3 alleged that the withdrawal was dishonest with intent to commit theft. It may well be argued that the charges had been duplicated.

In order for the disciplinary committee to have found the Grievor guilty of these charges it needed to have genuinely and honestly concluded on reasonable grounds that either alone or with another (a) the Grievor had fradulently completed a paper application for the pre-retirement partial withdrawal of $3000 from the deceased member’s account, (b) the Grievor had registered the paper application using Mr Teai Seru’s log in on Mr Teai Seru’s PC, (c) the Grievor had knowing that it was a fraudulent application screen approved the paper application that Mr Konrote had been induced to approve, (d) the Grievor fraudulently approved the batch prepared by the payments officer knowing that it included the $3000 withdrawal from the deceased member’s account (e) the Grievor prepared and printed the EFT letter using Mr Soqoidaveta log in and PC (f) prepared and printed the letter of identity and (g) went to the ANZ Bank and collected the $3000

It must be acknowledged that it could only have been a male person who went to the ANZ Bank with the EFT letter and the identification letter as they both referred to a male as the entitled payee.

In reaching these conclusions the only evidence upon which the committee had before it was that given by Ms Bano.

Once again it should be noted that the Grievor was not Ms Bano’s team leader at the time of the incident in July 2006. Her team leader was Rosalyn Singh.

Apart from the comments already made about Ms Bano’s evidence, two further comments need to be made.

First, there was no satisfactory explanation as to how Ms Bano came to be in the office of the Acting CEO (Mr Achary) shortly before her statement was taken by Mr Vukialau on 27 March 2007. The Tribunal accepts the Grievor’a evidence that Mr Achary did have grounds for ill-feeling towards the Grievor
concerning the Grievor’s initial purchase of Mr Achary’s home and its subsequently having been sold to a third party at a considerable profit.

Secondly, on 4 June 2007 both the son and the daughter in law of the deceased member made written statement about what amounted to an attempt to get them both to amend their evidence concerning Ms Bano’s involvement in the incident. This attempt was made by a police corporal who worked with the family members and who was related by marriage to Ms Bano. It would appear that the intervention had been made at the request of Ms Bano who, if the statements were accurate, had also told the unfortunate police corporal a number of matters about the Grievor which were simply not correct.

The Tribunal accepts that these statements made by the deceased’s son and daughter in law were not made available to the disciplinary committee although their existence was known to Mr Valentine Low, one of the members of the disciplinary committee. The statements should have been placed before the Committee and both the son and the daughter in law should have been given the opportunity to confirm their accuracy.

Had the statements been placed before the Committee, they may have had the effect of raising an alarm bell concerning the credibility and reliability of Ms Bano and her evidence.

The Tribunal notes that in all the material that was placed before the committee not one person, other than Ms Bano, in any way implicated the Grievor in this incident. The family members did not deal with and did not recall ever having seen the Grievor. Not one of the four customer service employees indicated that they had ever seen the Grievor at or near any of their PC’s at the time of the incident.

There is one further matter that has caused the Tribunal some concern. In the written statements dated 30 January 2007 made by the deceased member’s widow and son, they both referred to initially being served by a short fair Indian girl at the counter wearing spectacles. In his evidence before the Tribunal Mr Vukialau indicated that description referred to Rosalyn. There was no material before the Tribunal as to just exactly when or how Ms Bano became the customer service officer who subsequently dealt with the family members.

The Grievor was advised in writing of the disciplinary committ’s findings. He subsequently was given an opportunity to appear before the Committee with his union representative for the purpose of mitigation. He was advised by letter dated 13 July 2007 that his employment had been terminated. The letter stated :

"Following your investigation on 12/4/07 and subsequent Disciplinary hearings on 4/5/07, 11/6/07 and 3/7/07, a report was prepared by the Chairman of the Committee and submitted to the Acting CEO for his decision.

After deliberating on the aggravating and mitigating factors of your case it is decided that you be dismissed from employment effective immediately.

The reasons for your dismissal are:

1) That you have breached the provisions of section 14.2 (i) of the HR Policy for gross misconduct which is contrary to your contract of employment.

2) That you have breached the provision of HR policy 13.2.2 (i) (ii) and your conduct is unacceptable.

For the many reasons which have been discussed in this decision, the Tribunal has concluded that the disciplinary committee, had it considered all the relevant material, did not have reasonable grounds for honestly and genuinely concluding that the grievor committed the acts of misconduct which constituted charges 2 and 3. Therefore the summary dismissal of the Grievor was not justified.

To the extent that Mr Low continued to be involved in procedures relating to the Grievor whilst he was a member of the disciplinary committee and in particular his withholding of the statements dated 4 June 2007 by the family members tainted the proceedings which were rendered unfair and amounted to a denial of natural justice.

The letter from the employer dated 28 June 2007 advising the Grievor of the mitigation proceedings did not fully comply with clause 17 (iii) of the Collective Agreement.

The Tribunal has concluded that the Human Resources (HR) Policy did not apply to the Grievor as a union member. He should not have been charged with offences under that policy. The Employer should have proceeded under clause 4B of the Collective Agreement.

The sum total of these procedural defects had the effect of rendering the dismissal unfair.

AWARD

The summary dismissal of the Grievor was unjustified and unfair.

The Grievor is to be reinstated from the date of his dismissal (13 July 2007) with no loss of salary or benefits.

He is to be paid the balance of his salary from 17 April to 13 July 2007.

DATED at Suva this 30 day of June 2008.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL