Fiji Public Service Association v Fiji Daily Post Company Ltd [2008] FJAT 7; Award 07 of 2008 (28 February 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 7 OF 2008

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

FIJI DAILY POST COMPANY LIMITED

FPSA: Mr N Tofinga
Daily Post: Mr R K Naidu

DECISION

This is a dispute between Fiji Public Service Association (the Union) and Fiji Daily Post Company Limited (the Employer) concerning the dismissal of four employees (the Grievors).

A trade dispute was reported by the Union on 10 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 5A (5) (a) of the Trade Disputes Act Cap 97.

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

"- - - over the dismissal of Ms Meri Senikuraciri, Ms Luisa Dryson, Ms Dimacu Naqoli and Mr Timoci Vula. The Association contends that the dismissals were unfair; wrongful; without due process; and that the Company acted in breach of clause 8.0 of the Memorandum of Agreement signed on 14 February 2003. The Association seeks the immediate re-instatement of all the above mentioned members without any loss of salary and benefits from 30 September 2006, the date they were wrongly dismissed."

The Dispute was listed for a preliminary hearing on 27 July 2007. On that day the parties were directed to file preliminary submissions by 10 August and the Dispute was listed for mention on 17 August 2007.

The Union filed its preliminary submissions on 3 August and the Employer did so on 10 August 2007.

The Dispute was fixed for hearing on 9 October 2007. On that day the Union applied for the hearing date to be vacated as the advocate appearing for the Grievors was ill. After hearing from the Employer, the Tribunal granted the application and directed that the hearing date be vacated on terms that the Union pay to the Employer the amount of $10.00 as costs thrown away. The Dispute was relisted for mention on 19 October 2007.

The Dispute was subsequently listed for hearing on 12 December 2007. Due to a part heard Dispute that date also was vacated.

The hearing of the Dispute was conducted on 7 February 2008 in Suva. During the course of the hearing the Employer called one witness and the Union called the four Grievors to give evidence. At the conclusion of the evidence the parties presented oral closing submissions.

The background to the Dispute may be stated briefly. The four Grievors along with eight other employees signed a three page petition dated 25 August 2006. The petition raised a number of matters of concern to the petitioners, including terms and conditions of employment, selection and employment of new staff and work practices. At the top of page 4, the following paragraph concluded the petition:

"Failure to look into these grievances could result in industrial action/strike. Look forward to managements participation and amicable resolutions to the problems."

The petition was addressed to The Publisher with cc copies to General Manager/Editor in Chief/Rajeshwar Singh (Fiji Public Service Association) Chairman of Board of Directors.

It would appear that the General Manager Mr Mesake Koroi became aware of the existence of the petition. Subsequently Mr Koroi obtained a copy which had been signed by all 12 petitioners. In his evidence Mr Koroi acknowledged that the issues raised in the petition related to internal matters which needed to be addressed internally. However it was "the threat of strike action if the demands were not met" that concerned him.

Mr Koroi then called a staff meeting which was attended by about 20 employees. At about the same time he faxed a copy of the petition to the Board Chairman in Australia. The Chairman of the Board then asked Mr Koroi to determine the identity of the petitioners. They were to be instructed by letter to attend a meeting with him on 4 September 2006. The Chairman indicated to Mr Koroi that he would come to Fiji on 3 September 2006 for the specific purpose of meeting with the petitioners. Once the twelve petitioners had been identified, they were each handed a letter dated 1 September 2006 which was signed by Dr Robert Wolfigramm, Editor-in-Chief. The letter stated:

"You will be aware (as per memo 30/8/06) that we are pursuing the matter of the staff petition against the present management that has caused so much trouble here of late.

We would like to interview you in this regard as to the degree and nature of your involvement in the matter – if any.

We would also like to discuss your section and its ongoing problems.

To this end, please make yourself available for a meeting with Mr Alan Hickling, DP Publisher and Chairman of the Board, next Monday 4th September 2006."

The memorandum referred to in the above letter was an unusual document which in itself could not possibly have resulted in any form of satisfactory settlement of what was obviously a serious employment relations problem. The memorandum was dated 30 August 2006 and was also signed Dr Wolfigamm.

The memorandum is now reproduced in its entirety:

"Memo to all staff

Re: Petitions Have Consequences

An ultimatum was given to those involved in instigating and signing a petition aimed at mobilizing opinion against the present management and thereby destabilizing this company, to provide the original document to me by 1pm Monday (28 August).

That deadline was not met and a final request was reiterated yesterday (29th August). It is now Wednesday and still nothing has surfaced.

The failure to comply with these requests in the face of written and oral requests, and private and public warnings, must resultin disciplinary and punitive action by the management – you give us no option.

It grieves us to do it, especially in the light of those who seem to be involved. I observe that:

- None of the alleged petitioners are employees who are Fiji-Indians – instead, the petitioners are either Fijian, Rotuman or of mixed-race;

- Many of the alleged petitioners are employees who have been frequent recipients of short-term money loans and other favours from the present management they have set themselves against;

- Some of the alleged petitioners are relatively new employees with the Daily Post;

- A number of the alleged petitioners have been given jobs here against the better advice of our Australian management team, but out of the kindness of the present management’s heart.

I wish this disgraceful episode had never happened and that things could be put right again. (Perhaps those of you involved need to think in terms of a traditional apology to the General Manager).

I congratulate our employees who, with good sense and gratitude, and with a sense of loyalty, got on with their work and exposed the petition futility for what it is.

It would appear that the letters were handed to the petitioners on various dates prior to 4 September 2006.

Each of the petitioners was called in to see Mr Hickling separately, one at a time, during the course of 4 September 2006. Each of the four Grievors gave evidence that when they were called in to see Mr Hickling, the Editor in Chief Dr Wolfigamm was also present.

Mr Koroi gave evidence that after the meetings were completed, the Chairman informed him that four of the petitioners were going to be dismissed because they were not remorseful, they would not withdraw their signatures from the petition and they had been identified as the prime movers of the petition.

The Chairman indicated that the remaining eight were to be issued warning letters which were to be withdrawn from their files after six months if they behaved themselves. They were treated leniently because they had been stupid and were not fully aware of what they had signed. It would appear that the Chairman drafted and signed the four undated termination letters which were identical and stated:

"I have considered all the available facts relating to your role in the anti-management petition "Staff Grievances" dated 25/8/06.

My conclusions are that the document signatories were foolish, if not malicious, the document content is ill-informed, if not subversive, and the method of its circulation was mischievous, it not coercive and disloyal. I also find you had a central role in the formation of that document.

It therefore saddens me to inform you that your services with the company are no longer required. The termination of your services begins forthwith. Please hand over all company properties in your possession to the bearer of the letter. The Accounts Section will settle up all monies due to you.

This is not a decision taken lightly, but it is one I believe is justified under the circumstances."

The Tribunal is required to determine whether the summary dismissal of each of the four Grievors was unfair, wrongful, without due process and in breach of clause 8.0 of the Memorandum of Agreement dated 14 February 2003.

Although the four Grievors were members of the Union at the time, it would appear that they had decided that the matters raised in the petition could best be dealt with by a direct approach to management. The Tribunal is satisfied on the evidence that the Union had prior notice of at least some if not all of the issues raised in the petition. The Union was a cc addressee to the Petition.

Section 30 of the Constitution provides that every person has the right to freedom of speech and expression including the freedom to seek, receive and impart information. In addition, section 32 provides that every person has the right to freedom of association. More significantly, section 33 (2) of the Constitution provides that every worker has the right to organize and bargain collectively and section 33 (3) provides that every person has the right to fair labour practices.

Having read the contents of the petition, the Tribunal is satisfied that the 4 Grievors and the other petitions did no more than exercise some or all of the above mentioned rights when they met, discussed, drafted and signed the petition. The Tribunal is satisfied that neither the petition nor the petitioners had breached any law authorized by the Constitution which may have limited the abovementioned rights.

The Tribunal notes that clause 2.1 of the Agreement dated 14 February 2003 is a voluntary recognition clause whereby the Employer recognized the Union as the representative of full time permanent employees who were financial members of the Union and as their agent for the purposes of Collective bargaining. As a result of that clause and in accordance with the Trade Unions (Recognition) Act 1998, the Employer would have been entitled to indicate to the petitioners that the appropriate course of action was to refer the issues to the Union. Alternatively the Employer could have taken the matter up with the Union after receipt of the petition. There was no evidence before the Tribunal that the Employer had taken either course.

In any event the Trade Unions (Recognition) Act did not in any way limit the Grievors’ (or the petitioners’) entitlement to exercise any of their constitutional rights to which reference has been made in this decision.

Furthermore, the Tribunal notes that there was no material put forward to suggest that the Grievors or for that matter the Union, intended to proceed in a manner which was inconsistent with the provisions of either the Trade Unions Act Cap 96 or the Trade Disputes Act.

The Tribunal notes that the petition did not threaten strike action in the sense that if the issues were not dealt with, strike action would follow. The petition said that strike action could be a consequence.

The Tribunal has therefore concluded that neither the preparation of the petition nor its contents constituted misconduct and certainly not serious misconduct which would justified the penalty of summary dismissal pursuant to clause 8.2 of the Agreement dated 14 February 2003. That clause essentially reflected the provisions of section 28 of the Employment Act Cap 92. The dismissal was therefore wrong and unreasonable.

The procedure followed by the Employer was manifestly unfair. The Grievors were not specifically charged with a disciplinary offence. They were not informed that they might bring a union representative to the meeting. They were not given an opportunity to mitigate in relation to penalty.

Furthermore, Dr Wolfigamm was present during the meeting with each of the Grievors and Mr Hickling. There were issues in the petition which concerned Dr Wolfigamm. He was an interested party and should not have been present when Mr Hickling spoke to each of the Grievors. He remained in the room with Mr Hickling when each Grievor left at the end of his/her meeting. There was the perception that Dr Wolfigamm participated in the decision making process.

These matters as well as amounting to breaches of procedural fairness in themselves also constituted a breach of clause 8.1 of the Agreement between the parties dated 14 February 2003.

The Tribunal is also satisfied that the Employer has breached the implied term in the contract of service of each Grievor which required the Employer to deal fairly with the employee even in the context of dismissal. The Tribunal is satisfied that the dismissal was carried out in a manner that was humiliating.

As a result the Tribunal has concluded that the dismissals were unfair, wrong, without due process and in breach of clause 8 of the Agreement.

In this case, re-instatement is not appropriate as the Grievors did not seek re-instatement for various reasons which each explained in their evidence. The Union belatedly acknowledged this at the end of the hearing.

In determining an appropriate remedy, the Tribunal does take into account the evidence given by Mr Koroi as to the financial position of the Employer. Under the circumstances, each of the Grievors is awarded three months wages in respect of the unfair and wrongful summary dismissal.

AWARD

The summary dismissal of each of the four Grievors was unfair, wrongful without due process and in breach of Clause 8 of the Agreement dated 14 February 2003.

Each Grievor is awarded three months’ wages as re-instatement is not appropriate.

DATED at Suva this 28^th day of February 2008.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL