Fiji Public Service Association v Land Transport Authority [2008] FJAT 4; Award 04 of 2008 (8 February 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 4 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 with Mr J Savou

DECISION

This is a dispute between Fiji Public Service Association (the Association) and Land Transport Authority (the Authority) concerning the dismissal of Joseph Subramani (the Grievor).

A trade dispute was reported by the Association on 29 January 2007.

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

Subsequently the Minister authorized the Permanent Secretary to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 6(1) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 19 August 2007 with the following terms of reference:

" - - - The dispute is over the Union’s claim that the disciplinary process and the dismissal of Mr Joseph Subramani were made wrongfully; made unfairly, procedurally unfair; in breach of clauses 8.2.4 and 8.2.7 of the Collective Agreement and that Mr Subramani was denied natural justice by the Authority. The Association seeks the immediate re-instatement of Mr Subramani without any loss of wages and/or benefits from when the disciplinary action began."

The Dispute was listed for a preliminary hearing on 24 August 2007. On that day the parties were directed to file preliminary submissions within 21 days and the Dispute was listed for mention on 21 September 2007. The Association filed its preliminary submissions on 21 September and the Authority did so on 5 October 2007.

The hearing of the Dispute commenced on 17 December 2007 in Suva. The hearing continued on 18 December and was then adjourned part heard to 14 January 2008. The hearing was completed on 15 January and the parties presented their closing oral submissions on that day.

During the course of the hearing the Authority called four witnesses and the Association called two witnesses to give evidence. In addition, in a signed document dated 14 January 2008 the parties admitted into evidence certain facts which would otherwise have been given in oral evidence by a Mr Hinayak Ahmed. Mr Ahmed could not be located and in the interests of completing the hearing without unnecessary delay and expense the parties sought leave to adduce his evidence in this manner.

The Grievor commenced employment with the Authority in 2001 as a prosecutor. Prior to that he had been employed as a Regular Constable in the Fiji Police Force. The Tribunal accepts the Grievor’s evidence that prior to these disciplinary proceedings, he had not previously faced any work place disciplinary action in either the Police Force or with the Authority.

The Grievor’s contract of service was dated 1 May 2001 and provided for a three year period of service as a Prosecuting Officer of the Authority. The contract was renewable and it was provided that the agreement would remain in force for the three year period unless terminated, amended or replaced by any further agreement.

The agreement set out in clause 7 the Grievor’s duties which required him to assume all the responsibilities and control over the management of the Authority’s work by providing prosecution services of all the Authority’s Traffic Infringement Notice (TIN) proceedings in the Magistrates Court by the effective performance of specified functions. Those functions were stated as being the preparation of case facts, preparation of legal arguments, preparation of court proceedings reports and appearing in court to conduct hearings. There was nothing in the contract of service which authorized the Grievor to collect money on behalf of the Authority.

The Authority’s Manager Human Resources (MHR) stated in her evidence that the position description which applied to the Grievor was retained at the Authority’s main office. The MHR conceded that she was not certain whether the Grievor had ever seen a copy of his position description. A recently amended version of the position description for a Prosecution Officer was admitted into evidence. The MHR acknowledged that a list of key relationships/interactions had been inserted into the revised position description. This section listed the most important internal/external business relationships as liaising with all district Prosecutions Officers, all Enforcement Supervisors, all booking officers, Magistrate’s Court Registry, Police and with LTA sheriff on debt collection.

The Association urged the Tribunal to conclude that this section formalized a necessary aspect of the Prosecutor’s work which in fact had already been taking place and which indicated that there were functions which were required to be performed outside or beyond the expressly stated duties and responsibilities. The MHR stated in her evidence that there was nothing in the amended position description which authorized a prosecution officer to collect money.

By clause 5(b) of the contract of service, the agreement could be terminated:

"By the Authority with or without an initial period of suspension as the Authority may deem proper if, after reasonable inquiries and after giving the officer the full and proper right and opportunity to be represented and heard, the Authority is satisfied that the officer is guilty of serious misconduct or has committed serious breach of any material term of this Agreement."

The applicable terms and conditions of the Collective Agreement dated 17 December 2001 were an implied condition of the Grievor’s contract of service as a result of section 34 (7) of the Trade Disputes Act. For the purposes of this Dispute clauses 8.1 dealing with the Code of Conduct and 8.2 setting out the disciplinary procedures are relevant.

In addition, the provisions of a registered Memorandum of Agreement dated 10 February 2004 and signed by the parties to the present Dispute are relevant to the extent that the Agreement sets out an agreed procedure for processing complaints from the public.

As a result of complaints received from members of the public a report dated 12 December 2005 was prepared by Mr J Bola, the then Manager Audit. In the report complaints from four members of the public were outlined in some detail. There were five further complaints to which reference was made but not in any detail.

In a signed letter dated 25 November 2005 and addressed to Mr Bola one of the detailed complaints (from Mr V Nair) and three of the other complaints were withdrawn by the complainants. For reasons best known to Mr Bola, he did not make any reference to this letter or to the withdrawal of the complaints in his report. In cross-examination Mr Bola conceded that he may have seen the letter.

The Report stated that the Grievor had admitted receiving the money in relation to the complaints which had been set out in detail. The misconduct which the Report appeared to be identifying was that the Grievor had accepted money but had not immediately paid it into LTA which it was alleged was a breach of the Authority’s Finance Manual.

The Report also stated that by delaying for periods between 3 to 24 months the acquittance of the money received, the Grievor’s totally unacceptable behaviour amounted to dishonesty.

The Tribunal notes that it was conceded by the Authority that the Finance Manual was not approved by the Authority until its meeting on 17 December 2004, the Minutes of which were not confirmed until 7 April 2005.

As a result of the report, it was decided that the Grievor should be charged. By memorandum dated 22 January 2005 (should read 2006) the Grievor was charged with five sets of offences referred to as counts relating to the complaints dealt with in the report prepared by Mr Bola.

The first paragraph of the memorandum stated:

"Reports have been received from members of the public alleging that you have been involved with receiving money from them on behalf of the Authority and some of these funds have not been accounted for. As a result an audit investigation was undertaken to determine the truth that revealed several findings contrary to our policy and procedures."

At the end of the memorandum there was a list of 37 attachments which were served on the Grievor together with the memorandum itself. The letter dated 25 November 2005 signed by five complainants withdrawing their complaints was not included in the list of documents. However it was apparent that the Grievor was aware of the withdrawal of the five complaints.

In the memorandum the Grievor was advised that he was required to respond in writing within 14 days. As requested he replied in writing by letter dated 7 February 2006.

The Grievor was also advised that he was to be suspended on half pay with effect from 1 February 2006 pending the outcome of the disciplinary proceedings, pursuant to clause 8.2.9 of the Collective Agreement.

In what the charge memorandum described as count 1, the Grievor was charged with two offences. First, acting dishonestly and without integrity under clause 8.1.1. of the Collective Agreement (CA). Secondly, failing to uphold the Authority’s values and the integrity and good reputation of the Authority under clause 8.1.12 of the CA.

The particulars provided were that the Grievor collected $272 from Nikhil Anand Sharma for payment of three Traffic Infringement Notice (TIN) penalties, court fees and driving license. Receipts were not issued on the day the moneys were paid. A receipt was issued 2 days later for the licence and 5 months later for 2 TIN penalties. A third TIN penalty of $141.75 remained unpaid.

The basis of the allegations was the complaint made by the complainant. The list of attachments which appeared at the end of the charge memorandum indicated that there was a letter of complaint dated 5 April 2005 from Nikil Anand Sharma (document No 29). Also listed was a statement from Nikil Sharma dated 9 November 2005 (document No 26).

The complainant’s statement is brief and, omitting formal parts, stated:

"I confirm that I gave the sum of $225 to Joseph Subramani at the LTA Office in Tavua for the payment of my fine.

He told me that he was waiting for the warrant. Once he gets this from Court then he will pay the fine.

In the meantime he said he will renew my licence but no receipt was issued. Two days later he came home with the receipt for the renewal of my driver licence one (1) year.

Sir, I only hope the LTA will be able to renew my licence again. I am willing to pay all my fine."

In his written response, the Grievor admitted having received $14.00 for licence renewal and $225.00 for payment of TIN penalties and court fees on 19 November 2004. He also admitted not paying the TIN penalties and fees until 22 April 2005. The Grievor explained the delay as a result of checking to ensure that committal warrants had not been issued for the non-payment of court imposed penalties. The Grievor also indicated that the complainant had two outstanding warrants against him held at the Suva Prosecutions Office and that was why he was offering to pay fines. The Grievor claimed that he had returned the balance of the money to the complainant and that he had wanted to help the complainant.

There was no allegation by the complainant that the balance of the money was not returned. In the disciplinary interview the Grievor claimed that he returned $150 to the complainant.

The Tribunal is satisfied that the Employer had reasonable grounds for honestly and genuinely believing that the Grievor had received $225 and $14 from the complainant on 9 November 2004 and that receipts were not issued on the same day but rather on about 11 November 2004 for the $14 licence renewal fee and on about 22 April 2005 in respect of the payment of TIN fines and fees. On balance the Tribunal accepts that the Grievor returned the balance to the complainant. There was no evidence upon which the Employer could have concluded that he had misappropriated that amount.

In count 2 the Grievor was charged with the same two offences. The particulars were that the Grievor collected $400 from Mr Hinayak Ahmed on 23 August 2005 for payment of his fine and no receipt was issued until three months later on 24 November 2005. There did not appear to be an initial letter of complaint in this case.

A statement signed by the Complainant dated 23 November 2005 was admitted into evidence. Omitting formal parts, the statement said:

"On 23 August 2005 I came to renew my licence at the LTA Office in Rakiraki. On this day I was advised by Joseph Subramani that I have a fine of $400 to pay.

I did not have the money so I went to Colonial Bank to loan $400 just to get my licence renewed.

I came back to the LTA Office and paid Joseph the sum of $400 inside the office.

I asked him about the receipt and he told me that not to worry I will withdraw the charge from the computer.

In the afternoon 23/8/05 Joseph sent his daughter to give me the receipt for the $14.00 renewal of my card. My wife then gave the $14.00 to Joseph’s daughter.

Till to date I have not received my driver licence card.

I was reluctant at the first place to pay the $400 but because I needed my licence to be renewed I went out of my way to get the money.

When I gave him the money he told me to move away from where the cashier was and to move to the end of the counter.

He did not even count the money, he put it straight in his pocket and said that he trusted me."

The Grievor’s explanation was that in November 2005 the complainant gave him $420.00 for payment of two committal warrants and that a receipt for that amount from the Rakiraki court was subsequently given to the complainant. The licence has not been renewed because there was still an $800 file outstanding.

The Grievor’s explanation was in substance consistent with the material which was by agreement of the parties admitted as the evidence of the complainant at the hearing:

"Mr Hinayak Ahmed did give Mr Joseph Subramani on an undisclosed dated in October 2005 the sum of $417 for a court imposed penalty.

The Rakiraki Court receipt of the above-mentioned monies was issued later on 24 November 2005".

The Tribunal is satisfied that the Employer had reasonable grounds for genuinely and honestly believing that the Grievor had received the sum of about $420 from the complainant for the payment of fines and fees and that a receipt was issued sometime later.

In count 3, the Grievor was again charged with the same 2 offences. The particulars were that on 22 June 2005 the Grievor collected $91.25 from Mr Ajit Narayan for payment of TIN 439400 dated 22 June 2005. No official receipt was issued at the time. Both the Grievor and the complainant signed a piece of paper acknowledging payment of that amount. Five months later on 21 November 2005 a receipt for $91.25 was issued for the TIN penalty fees.

At the outset it must be noted that there was an obvious error in the particulars. It is abound to allege that payment of the fine was made on 22 June 2005 being the same date on which the TIN was allegedly issued.

It would appear that there was not an initial letter of complaint. There was a statement dated 23 November 2005 signed by the Complainant which, omitting formal parts, stated:

"On the 22 June 2005 I was booked in Rakiraki for not wearing seat belt. There was no TIN issued to me and I was not aware of the fine.

It was only after I met a Police Officer in the market that he told me that my name was mentioned in Court.

I then went to the LTA Office in Rakiraki to enquire. I was advised that I have a fine of $80 to pay.

The LTA Officer advised me to go to the Court House and to get the TIN cleared since it is over 21 days.

My enquiries with the Court – I was advised to contact Joseph Subramani.

I went to see Joseph and he advised me to pay $91.25 and he will withdraw the case.

- - I have a piece of paper signed by Joseph himself – but no official receipt given to me.

- - This morning I met Joseph in town and he gave me a duplicate receipt for $91.25."

The material available to the Employer at the time and made available to the Tribunal indicated that a TIN was issued on 22 June 2005 for a penalty of $80.00 and that subsequently court costs of $11.25 were imposed. The full amount of $91.25 was paid on 21 November 2005.

The Tribunal has concluded that allowing for the court process to run its course, it must have been much later than 22 June 2005 when the complainant paid the sum of $91.25 to the Grievor.

The Grievor’s explanation was that sometime in October 2005 the Grievor paid $91.25 for his penalty and costs. The Grievor claimed that the file was initially misplaced but later found and then a receipt was issued.

The Tribunal is satisfied that the Employer had reasonable grounds for honestly and genuinely believing that the Grievor had received $91.25 from the complainant in October 2005 and did not issue a receipt until 21 November 2005.

In count 4 the Grievor was charged with the same two offences. The particulars were that sometime in 2003 the Grievor received $80.00 from Mr Velaidan Nair of Rakiraki for payment of TIN 253514 issued on 13 November 2003. No receipt was issued until 13 November 2005. Receipt No 1810562 was issued for $91.25 which included the court fee of $11.25.

Again, these particulars are misleading. First, the sum of $80 for the TIN would not have been paid prior to the issue of the TIN. In other words, it wasn’t simply sometime in 2003 that the complainant paid $80.00 to the Grievor, it must have been sometime after the date of issue, i.e. 13 November 2003. Secondly, if a receipt was issued for an amount which included court fees, then that amount could only have been paid after the matter had proceeded to court and an order made by the Court. Allowing for statutory time for payment and time for administrative actions, it is more probable that the money was received by the Grievor at a much later date than 13 November 2003.

In the first paragraph of the complaint letter he stated that he had been fined for not wearing a seat belt. He also stated that there had been a court date.

The records produced by the Employer indicated that this offence took place on 13 November 2003. The court date must have been sometime in 2004.

The complainant in the same paragraph stated that he paid $80 to the Grievor after a discussion during the court session to have the fine "demolished". He then stated that he paid the money in 2003. This could not have been possible.

In the second paragraph he referred to another TIN offence of carrying excess passengers. The Employers records indicated that this offence occurred on 30 June 2004.

The complainant also stated that he paid $80 to the Grievor but didn’t get a receipt. He then stated that he paid $14 to the Grievor and got his licence renewed.

The investigation report prepared by Mr Bola was not helpful although it attempted to make some sense of what exactly was the real issue in this complaint.

In any event, Mr Veladhan Nair wrote to Mr Bola by letter dated 25 November 2005 and stated that:

"I Veladhan Nair s/o Ram Kutty wish to withdraw my complaint as I have received my receipt of $91.25. I only gave $80.00 fine and $11.25 was paid on Monday 21/11/05. I will not give evidence in any Tribunal or other proceedings. I regret making such complaint."

It is clear from the material that at some stage prior 21 November 2005, the complainant paid the Grievor $80 and that only on 21 November did the complainant pay $11.25 being the court fees component of the penalty.

It should also be noted that even the receipt date referred to in the particulars was incorrectly stated as being 13 November when the records indicated that it should have been 23 November 2005.

The Grievor’s explanation in relation to this saga was that:

" Velaidan Nair gave me $80 for his fine in 2004 being the fine for seat belt. I endorsed on the back of the TIN that I received $80.00. On the same afternoon I informed him that he had to pay a further $11.25 as costs but he refused. I told him that I will not make his receipt until he pays $11.25 cost. His son on 13/11/05 paid $11.25 and then I raised the receipt."

At the disciplinary hearing, once the Grievor had indicated that the complainant had withdrawn the complaint, there was no further discussion on the matter.

The Tribunal has concluded that, although the complaint was confusing, the particulars were inaccurate and the complainant had withdrawn the complaint, the Grievor admitted receiving money and not issuing a formal receipt until nearly two years later. Therefore the Tribunal is satisfied that the Employer had reasonable grounds for honestly and genuinely believing that the Grievor had received $80 from the complainant in 2004 and did not issue a receipt until 2005.

As for court 5, there was an allegation that the Grievor had received specified sums of money from five complainant by way of payment of fines. Although years and in some cases months were also stated, it was not clear whether that information referred to the date of offence or the date of alleged payment.

No further particulars were provided, although there were attached documents which dealt with the matters.

By a letter dated 25 November 2005, three of the five complainants indicated that they wished to withdraw their complaints. On that basis the Tribunal has concluded that it was unreasonable for the Employer to have proceeded against the Grievor on those matters. The allegations which related to when money was received by the Grievor could no longer be relied upon.

In relation to Jagat Raj Singh, there was a handwritten letter dated 29 March 2005 concerning the payment of $121.00 paid to the Grievor and $15.00 paid to the Grievor’s wife on 18 January 2005. The money was allegedly paid in respect of a TIN issued on 5 December 2003 for carrying excess passengers. The TIN fine was $80.00.

The complainant was not able to give any any reason why he handed over a total of $136.00. The explanation given by the complainant in his letter and in his evidence before the Tribunal as to how and why he decided to pay the money on 18 January 2005 was unconvincing.

However, the Employer’s Fees paid Extract (ex 19) dated 17 December 2007 revealed that a traffic infringement penalty for TIN No 253542 in the sum of $80.00 was paid on 7 April 2005.

It is apparent from the documentation that TIN No 253542 was issued on 5 December 2003 to the complainant for carrying excess passengers and the amount of the penalty was $80.00.

There is however no indication in the material as to who paid the fine on 7 April 2005. It is also somewhat surprising that a TIN penalty could remain outstanding for such a period without court proceedings. When the penalty was paid on 7 April 2005, a receipt must have been issued to the person making the payment.

Both the Grievor and his wife denied under oath receiving the money. Even to a poorly educated person, it would be strange for the complainant to have paid the Grievor the sum of $136 in satisfaction of a fine of $80. There was no suggestion in the evidence that the complainant queried the demand and the Tribunal is troubled by that fact.

In any event, there were no particulars put forward in the charge memorandum other than on 18/1/05 the Grievor received $136 from Ragal Raj Singh to pay the fine. The Grievor denied receiving the money in his written response. This case did not receive any attention during the disciplinary interview.

On balance the Tribunal has concluded that the complainant did not make the payments to the Grievor and his wife as alleged.

The remaining complainant was a Mr Ram Suchit. The only document in relation to this matter provided to the Grievor and the only document put into evidence at the hearing was a letter dated 7 June 2004 addressed to the President of the Ra Carrier Operators Association at Rakiraki. This letter stated:

"I wish to raise my concern against the LTA prosecutor, namely Joseph, who has obtained $100 from me in form of fine which I was imposed on one by LTA officers a month ago.

He promised to give me the receipt but I have received nothing.

I hope you will look into the matter as possible."

The complainant did not dispute that he had committed a traffic offence for which he had been fined. His complaint was that he had not been issued a receipt by the Grievor. The complainant did not say what the offence was, where it happened or when exactly it occurred. The complainant did not say when he gave the money to the Grievor or where it was allegedly handed over.

What is more surprising is that the Authority did not produce any records to indicate that such an infringement had occurred or that such a fine was still outstanding.

The Grievor’s explanation in relation to this matter was brief and stated:

"I did not receive $100 from Ram Suchit. It should be noted that people only pay fines when renewal comes and according to our system he renewed his driving licence in Lautoka."

At the disciplinary hearing, the Grievor made the following comment in relation to this matter:

"I have only met him. He received his licence in Lautoka. I have no contact with him as he is over 70 years."

Under the circumstances the Tribunal has concluded that there were insufficient grounds for the Employer to have honestly and genuinely believed that the Grievor had received $100 from this complainant in about May 2004. The Tribunal notes on page 10 of the disciplinary hearing notes (Ex. 24) that there was a further reference to Mr Ram Suchit but it is not clear to the Tribunal in what context the Grievor referred to the complainant.

The disciplinary hearing to which reference has already been made was conducted on 20 February 2006 at the Authority’s Valelevu Office. The panel consisted of eight senior managers/staff of the Authority and the unrepresented Grievor. The panel included the MHR who had prepared the charges and signed the charge memorandum. It also included the Chief Executive who acted as Chairman and who was actually required to approve the final decision as to penalty in the event that the Grievor was found guilty of misconduct. Interestingly, the investigator, Mr Bola, was not present nor was he called upon to give any evidence.

The hearing notes indicated that much of the time was spent listening to a reading out of the offences together with a reading out of the Grievor’s detailed reply. Reference has already been made to any discussion relevant to any of the five counts.

Towards the end of the hearing the Grievor was asked if he wished to say anything else and he stated:

"I may have broken the procedures but I have never had the intention of defrauding anyone. I was only trying to help someone who none of those people cannot say that they have not received a receipt.

I could have gone back to alter these things – but all I can say that I did not do it. Eg – docket is not reflected in the computer. The procedure that was adopted for the four people was wrong. I was not trying to be dishonest but I was only trying to help them."

After the hearing had been completed the panel made some findings after considering the material and the Grievor’s explanations. It was decided that the Grievor’s employment should be terminated with immediate effect. As a result a memorandum dated 23 February 2006 advised the Grievor that he was dismissed from being an employee of the Authority with effect from Friday 24 February 2006.

The Tribunal accepts the Authority’s conclusion that the collection of TIN penalties and committal warrant fines was not one of the Grievor’s duties. It was not expressly stated in his position description. The Tribunal considers that in the interests of transparency such a function should not be implied into his duties.

Committal warrant fines should have been paid at either the court or to the police charged with executing the warrant. TIN penalties should have been paid at one of the Authority’s offices.

The Tribunal accepts that regardless of who collected any money from a member of the public in respect of either a fine or a penalty, a receipt should have been issued on the same day. Any other course of action immediately raises a doubt about the integrity and honesty of the Grievor in the mind of the public.

There was no dispute about the fact that the Grievor had collected money as payment of penalties and fines from members of the public and failed to issue receipts on the day of payment.

As a former policeman of some 19 years experience, the Tribunal is satisfied that the Grievor knew or ought to have known that what he did would appear to be dishonest by the standards of ordinary decent people. As a result the Tribunal is satisfied that the Grievor’s behaviour at least was tainted by the suspicion of dishonesty.

Furthermore, as a prosecutor, one of his duties was to appear in courts of summary jurisdiction to prosecute offenders on behalf of the Authority. The Grievor was required to behave and to be seen to be behaving in a manner which was beyond reproach. The Grievor played an integral part in the criminal justice system administered by the courts of summary jurisdiction. The Grievor’s behaviour was also expected to reflect the standards and values of the Authority.

The Tribunal is satisfied that the Authority had reasonable grounds for honestly and genuinely believing that the Grievor had committed acts of misconduct. The Grievor had acted without integrity and in a manner which aroused the suspicion of dishonesty. In doing so he failed to uphold the Authority’s values and its good reputation. The Tribunal has concluded that the Authority had acted reasonably when it concluded that the misconduct was serious and justified summary dismissal. The Tribunal is satisfied that the penalty of summary dismissal was within the band of penalties which a prudent employer would consider reasonable under the circumstances.

In relation to the procedure, the Tribunal has some concern about the manner in which the Grievor was advised about the arrangements for the disciplinary hearing. A telephone call one or two working days in advance is neither professional nor appropriate.

However the Tribunal is satisfied on balance that the Grievor was informed that he could bring representation with him and that at the hearing he agreed to proceed without representation.

If the Grievor had felt that he was in any way disadvantaged by the short notice, it would have been open to him to either request time to arrange representation or request more time to prepare in view of the short notice. This Grievor was experienced in the manner in which such proceedings were conducted. As a former policeman and as a prosecutor he was or ought to have been aware of the right to representation and the right to request further time or an adjournment.

Although the Authority has not complied strictly with the terms of the Agreement dated 18 February 2004, the Tribunal does not consider the breaches to be sufficiently serious to have rendered the procedure unfair. Although copies of the letters of complaint were not given to the Grievor within 72 hours of acceptance, they were provided with the charge memorandum as attachments. The Grievor was able to consider the written complaints before preparing his written response.

The real issue in relation to the fairness of the procedure arises as a result of clause 8.2.4 of the Collective Agreement. The first half of that clause is relevant to this Dispute and provides that:

"On receipt of the written explanation of the employee as required under Article 8.2.1 above, the Authority shall, if it considers necessary to establish the truth of the charge and to find facts, request for an independent inquiry to be made into the alleged breach of Code of Conduct. - - - ‘

The Authority was required to make a decision as to whether an independent inquiry was to be made after it had received the Grievor’s written response. The Authority was only required to request that an independent inquiry be made if it considered it necessary to establish the truth of the charge and to find facts.

The Authority, in deciding whether or not to request an independent inquiry, was required to take into account the contents of the Grievor’s written response.

In his written responses the Grievor stated that he denied the charges. However he also admitted receiving money as payment of penalties and fines from members of the public. He admitted not issuing receipts on the day he received the money and he also admitted that money received was held by him for some time until it was either forwarded to the court or to the Authority for a receipt to be issued. What in effect the Grievor was denying were the consequences of those admitted acts.

The Tribunal has concluded that it was not necessary for an independent inquiry to establish the truth of the charge or to find facts as they had been admitted by the Grievor.

The Tribunal accepts that in proceeding down the path it chose, the Authority was required to proceed with caution and ensure that the Grievor was treated fairly. The Tribunal is satisfied that there was no element of pre-determination or bias in the proceedings. As the facts had been admitted by the Grievor in his written response, the composition of the panel was not as significant a factor in the proceedings as would have been the case had the panel been required to make findings on disputed facts.

As a result the Tribunal has concluded that the dismissal of the Grievor was neither wrong nor unfair. There has not been any breach of clause 8.2.4 or clause 8.2.7 of the Collective Agreement.

AWARD

The dismissal of the Grievor was neither wrong, unjustified, unfair nor in breach of the Collective Agreement.

DATED at Suva this 8^th day of February 2008.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL