Fiji Bank and Finance Sector Employees Union v ANZ Banking Group Ltd [2008] FJAT 9; Award 09 of 2008 (19 March 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 9 OF 2008

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI BANK AND FINANCE SECTOR EMPLOYEES UNION

AND

ANZ BANKING GROUP LIMITED

FBFSEU: Mr P Rae with Mr D Singh
ANZ: Mr J Apted

DECISION

This is a dispute between Fiji Bank and Finance Sector Employees Union (the Union) and ANZ Banking Group Limited (the Bank) concerning the dismissal of Nemia Ratu and Rasheed Hussain (the Grievors).

A trade dispute was reported by the Union on 20 May 2007.

The report was accepted on 30 May 2007 by the Permanent Secretary who referred the Dispute to a Disputes Committee.

Subsequently the Minister authorized the Chief Executive Officer 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 7 September 2007 with the following terms of reference:

“- - - The Dispute is over the summary dismissals of Nemia Ratu and Rasheed Hussain on 19 April 2007. The Union views the Bank’s action in summarily dismissing the two employees as harsh, unreasonable, unjust and unfair and seeks their re-instatement without any loss of pay and benefits.”

The Dispute was listed for a preliminary hearing on 21 September 2007. On that day the parties were directed to file preliminary submissions within 21 days and the Dispute was listed for mention on 19 October 2007.

On that day the parties were granted an extension of 21 days to file their preliminary submissions.

The Union filed its preliminary submissions on 6 November and the Employer did so on 12 November 2007.

The hearing of the Dispute commenced on 12 February 2008 in Suva. The hearing resumed on 13 and was completed on 14 February 2008. The parties presented oral closing submissions on 25 February 2008.

During the course of the hearing the Bank called two witnesses and the Union called the two Grievors to give evidence.

The Tribunal will first consider the grievance of Nemia Ratu (Grievor 1) and then deal with the grievance of Rasheed Hussain (Grievor 2).

Grievor 1 (Nemia Ratu) commenced employment with the Bank in a part time capacity in 2001. In 2003 he was appointed to a full time position as an International Trade Finance Officer at the Suva Branch. As a full time employee he had the use of a Personal Computer (PC) with e mail facilities and access to the Bank’s intranet programs.

The terms and conditions which constituted his contract of service were to be found in a number of documents. First, Grievor 1 signed a service agreement dated 19 August 2003. Clause 12 (d) stated that:

“12 The employment of the Officer shall be terminated by any of the following events:

(a) - - -

(b) - - -

(c) - - -

(d) By the Officer’s dismissal from the Bank’s service for:

(i) Dishonesty, wilfull insubordination, neglect of duties, being absent without authority or the willful breach by the officer of any of the Bank’s regulations for the time being in force or of this Agreement’s conditions.

(ii) Any other conduct or act which in the opinion of the Bank constitutes misconduct”.

In addition, on 17 October 2006 Grievor 1 signed a document acknowledging that he had received a copy of the Bank’s Code of Conduct booklet, that he had read and understood the contents and that he agreed “to abide in full with the content of the Code of Conduct”. Under the heading of “Honesty, Integrity and Accountability, the following “principles”, amongst others, were listed:

- My conduct on the job will be such that my honesty and integrity is beyond question.

- My behaviour on and off the job will not be detrimental to the good name of ANZ or of its staff generally

- I shall be accountable for my actions.”

On the last page of the booklet under the heading “Personal Accountability”, the last sentence stated:

“With responsibility comes accountability and employees can face disciplinary action by ANZ when ANZ perceives that a person’s conduct or actions are in breach of this Code or their employment agreement.”

The Tribunal also accepts that a document dated 18 December 2006 from the then Manager Human Resources (MHR) (Ms Lyn Mellsop) addressed to Fiji Leaders and Fiji Managers with the title “Use of ANZ Systems and Equipment” was also part of Mr Ratu’s terms and conditions of employment. The Tribunal has reached this conclusion based on the answers given by Grievor 1 during the course of his disciplinary meeting on 19 April 2007. The following extracts from that document are relevant to the present dispute:

“PRINCIPLE

ANZ allows limited personal use of technology but not where this offends people or is otherwise against the interests of ANZ or its customers”

PERSONAL USE

Limited personal use is allowable if:

- employees steer clear of the no-go zone- see below

NO-GO ZONE

The following list provides examples of the types of activities that are prohibited uses of ANZ systems and equipment, whether you are in the office or working remotely:

- creating, accessing, attempting to access, transmitting, storing or retaining :

- offensive, including pornographic or racist, material

- material that would offend, or sexually harass, if observed by others.

MONITORING

The email and internet systems are the property of ANZ. ANZ may, for example, monitor email messages created, sent internally or externally, received or stored on the system and records of internet use.

BREACH OF THE POLICY

Misuse of ANZ systems and equipment can have major consequences for ANZ, ANZ customers and individual users. Therefore any breach of this policy will be treated very seriously. Disciplinary action will be taken for breach of the policy, which may include dismissal.”

Grievor 1 was also subject to a publication known as “ANZ Employee Information Security Handbook.” On page 10 of that publication under the heading “Acceptable use of ANZ’s systems and equipment”, the following appeared :

“ - - - You must never send, access or store material that could offend people, cause significant cost or drain on ANZ’s resources or go against the interests or values of ANZ or our customers. See “no’go zones” in ANZ’s Use of Systems and Equipment policy for more information. In line with this policy specific internet sites and emails are blocked.”

As Grievor 1 was a member of the Union, the relevant provisions of the Collective Agreement between the parties was an implied condition of his contract of service by virtue of section 34 (7) of the Trade Disputes Act. Clause 4B (ii) stated, so far as is relevant to this Dispute, that

“Nothing contained in sub-clause (i) above shall be construed as in any way detracting from the Employer’s right to dismiss summarily any employee within the regulations agreed to upon the commencement of his or her employment and in the following circumstances :

(a) Where an employee is guilty of misconduct inconsistent with the fulfillment of the express or implied conditions of his or her contract of service;

(b) For willful disobedience to lawful orders given by the employer;

(c) - - -

(d) - - -

(e) - - - “

The circumstances under which the Employer may summarily dismiss an employee under this clause are the same as those stated in section 28 of the Employment Act Cap 92. That section limits the right of an employer to summarily dismiss an employee to the circumstances which are set out in the section. As Scott J noted, with the approval of the Fiji Court of Appeal:

“ - - - the section did not confer an unfettered right to dismiss an employee where any of the matters specified in section 28 was found to exist, rather it removed the common law right to dismiss except where paragraphs (a) to (e) applied”. [See Fiji Public Service Association and Satish Kumar –v- The Arbitration Tribunal and FTIB (Unreported civil Appeal No 13 of 1999 delivered 19 February 2002 at page 10) ].

Therefore, even if the incident falls within one of the listed circumstances, the misconduct must still have been sufficiently serious that it would have entitled an employer to treat the contract of service as having been discharged at common law.

As the then Permanent Arbitrator observed in National Union of Hotel and Catering Employees –v- Shangri-La’s Fijian Resort (Award No 38 of 1999 dated 6 October 1999) at page 8:

“The effect of section 28 is that the right of summary dismissal is limited in Fiji to the 5 circumstances set out in the section. However, the right does not arise merely because an employee’s conduct falls generally within any circumstance described in the section. - - - even at common law, it is always a question of degree; only serious or fundamental breaches of the contract of employment entitle the employer to exercise this right. Apart from this common law limitation, which might be the basis for a common law “wrongful dismissal” claim in a court of law, in disputes before the Tribunal alleging “unfair dismissal,” the exercise of the right must also accord with the additional principles of fairness or reasonableness, and good industrial practice applied by the Tribunal in such disputes.”

Again, the same Permanent Arbitrator noted in BP (SS) Co Ltd and WR Carpenter Groups Salaried Staff Association –v- Carpenters (Fiji) Ltd (Award No 4 of 2000 dated 7 March 2000) at page 4 :

“However, in assessing whether in any particular case the action in question justifies summary dismissal, employers and arbitrators and courts must still look at the actual circumstances to assess the real seriousness of the misconduct and to see if there are any extenuating circumstances.”

At this stage the Tribunal considers it appropriate to make a brief observation. Expressions such as “no-go zones” and “zero tolerance” are not useful or even appropriate in the context of work place discipline. They tend to be relied upon by employers as a basis or justification for imposing on an employee the maximum penalty of summary dismissal without any or sufficient regard to the seriousness of the misconduct or to the presence of any extenuating circumstances which would otherwise justify the imposition of a lesser penalty by a reasonable employer acting reasonably.

The Tribunal accepts that the policy documents that formed part of the Grievor’s contract of service did give a discretion to the Bank as to the imposition of an appropriate penalty. However clause 12 of the Service Agreement must be applied in a manner which is consistent with section 28 of the Employment Act.

The background to this dispute may be stated briefly. In or shortly before April 2007 the Bank’s Group Investigations department in Melbourne conducted a random check of the Bank’s email system in Fiji. As a result the Bank’s MHR in Fiji received first a phone call, and then an email from Melbourne advising of the outcome of the random check. The MHR could not recall who had called her from Melbourne nor who had sent her the email from Melbourne. She could not recall if she made a diary note and she was not able to produce a hard copy of the email. Attached to the email were four attachments which the random check had uncovered and which the Bank in Fiji was required to deal with.

The attachments related to emails belonging to four employees. The four employees had apparently all received material by external email. They had each then transmitted externally the material to one or more persons by email.

Two of those employees, Ms Doreen Prakash and Ms Prithi Ben were given a first and final warning, following a disciplinary interview. The two Grievors were summarily dismissed following disciplinary meetings.

Grievor 1 was advised by letter dated 18 April 2007 that he was to attend a Disciplinary Meeting. The letter stated:

“This letter is to advise you that you are required to attend a formal disciplinary meeting to discuss allegations of serious misconduct that has been made against you.

The allegations are that you used the bank’s system inappropriately and breached ANZ’s Code of Conduct. Specifically, the allegations are:

1. On the 5th of January 2007, you stored explicit pornographic images using the bank’s email system.

2. On the 5th of January 2007, you forwarded explicit pornographic material using the bank’s email system.

3. That these behaviours are a direct breach of the ANZ Code of Conduct.

You will be given full opportunity at the meeting to comment on this matter and provide an explanation. Your explanation will be given full consideration before any decision is made.

The Bank views this matter seriously. You are therefore advised that a possible outcome of this meeting may be formal disciplinary action, including your dismissal from the Bank.

We have made prior arrangements with a Union Representative – Yogesh Lal – to represent you at the interview. However should you so wish, you may bring a support person to the meeting.

The meeting will be held with Head of Peiple Capital, Lyn Mellsop and People Capital Consultant Tinai Colawai from 1.00pm tomorrow, 19th April, 2007, in the Head of People Capital’s Office, 7th Floor, ANZ House.

If you have any queries at all regarding the above, please don’t hesitate to contact me.”

The Disciplinary meeting took place on 19 April 2007. There were some notes taken at the meeting, but it was conceded by the Bank’s witness that the notes were not a verbatim record. It does appear to the Tribunal both from the format and the context that the notes represent a broad outline or summary of what was said. There were no signatures to confirm the notes and the Grievor was not shown a copy. Following the meeting, Grievor 1 received his termination letter dated 19 April 2007 which stated :

“On 19th April 2007 you attended a formal disciplinary meeting to discuss allegations of serious misconduct that were made against you.

The allegations were that you used the bank’s system inappropriately and breached ANZ’s Code of Conduct and the ANZ Systems and Equipment policy. Specifically, the allegations were:

1. You stored pornographic images using the bank’s email system on several occasions.

2. You forwarded pornographic material using the bank’s email system on 5th January 2007.

Following investigations by ANZ Group Investigations and discussions held with you in the interview on 19 April 2007, the Bank has deduced the following:

1. You received, stored and transmitted pornographic images that were offensive and defamatory in nature using ANZ’s system:

2. You were aware of the Use of ANZ Systems and Equipment policy

In the disciplinary interview on 19th April 2007 you agreed to the following:

- Breach of ANZ Code of Conduct Fiji

- Breaching the “Use of ANZ Systems and Equipment” policy.

As a direct consequence of the concerns highlighted above and the information supplied through ANZ Group Investigations, I now confirm that the Bank views your actions as a serious breach of both your employment and collective agreements.

ANZ is also concerned at the potential reputation risk this may have caused ANZ, specifically our relationship with our customers.

In terms of the Collective Agreement Clause 4 B ii) a) and Clause 12 (d) (i) & (ii) of your Service Agreement, you are hereby dismissed from the Bank services with immediate effect.

As advised in our meeting ANZ wishes to extend to you the services of our Employee Assistance programme (EAP). If you require the contact details, please contact me.”

Having considered the evidence, the Tribunal is satisfied that the Bank had reasonable grounds for honestly and genuinely believing that Grievor 1 on 5 January 2007 had stored and transmitted material which included two images which constituted offensive material. The Tribunal does not consider the material to be pornographic. There were no sexual activities or bodily functions displayed. Whilst the images were the sort of material that might well have interested immature school boys, they were not pornographic. The Tribunal does accept that the images had the potential to offend although there was no evidence before the Tribunal that the Bank had received any complaints from either any other employees or from any of the listed addresses.

The Tribunal is also satisfied that there was no other material or evidence upon which the Bank could have relied for its decision to dismiss the Grievor.

The Tribunal considers the material to be at the lower end of what can reasonably be classified as offensive. As such the Tribunal considers the material to be no more potentially offensive than the material attached to the emails of the two employees who were given warnings.

The Tribunal has concluded that the decision to summarily dismiss Grievor 1 was unreasonable and unfair. The decision was unreasonable because the misconduct was not sufficiently serious to conclude that the most serious penalty of summary dismissal was within the range of penalties considered reasonable by a reasonable employer. The decision was unfair because the Employer had imposed the most serious penalty on an employee whose misconduct was sufficiently similar to that of two other employees who had been given warnings.

It was not disputed that this was the first disciplinary incident involving Grievor 1 and that his work performance had in all other aspects been satisfactory.

The Tribunal considers that re-instatement is not appropriate as Grievor 1 is now in full time permanent employment. Under the circumstances the Tribunal does not consider it appropriate to make any award to Grievor 1 in this dispute.

Grievor 2 (Mr Rasheed Hussain) commenced as a full time employee in 2004. At the time of his dismissal he held the appointment of Headteller at the ANZ E Shop in Waimanu Road Suva. Although Mr Hussain’s Service Agreement was not available, it was accepted that his contract of service contained a
clause similar to clause 12 (d) which formed part of the Service Agreement of Grievor 1. Mr Hussain also signed a Code of Conduct Acknowledgment dated 18 October 2006 in the same form as that signed by Grievor 1.

His contract of service also included the same provisions as those set out above from the policy documents and the Collective Agreement.

The attachments forwarded by Group Investigations in Melbourne to the Bank’s MHR in Suva included a number of emails received by Grievor 2. The evidence before the Tribunal was that an e mail dated 22 March 2007 was received from an external addressee with the title “Careful-Awesome Frude”.
There is no evidence to suggest that Grievor 2 forwarded this email to any other addressee or to himself at his “Yahoo” address. However the 30 odd pages of the attachments to the email were pornographic. The pictures depicted a group of naked men and women in an indoor spa/pool engaged in sexual activity. There were two other sets of email attachments. It was clear to the Tribunal that Grievor 2 had received the emails from an external addressee. For reasons which are not entirely clear to the Tribunal the Grievor apparently forwarded these two emails together with their attachments to his “yahoo” address. It was not clear from the evidence whether the material remained stored in his ANZ email inbox.

Then, again for reasons best known to himself, on 4 February 2007 Grievor 2 forwarded both emails and their attachments back to his ANZ e mail address.

One of the emails carried the title “Learn to Swim” and the other “Love Pizza? Pizza Man is Here’ Careful "’ “ The contents of both were pornographic in the sense that both emails contained, as attachments, pictures of sexual activity.

Grievor 2 was also advised by letter dated 18 April 2007 that he was required to attend a disciplinary meeting. The letter was similar to that received by Grieor 1 except that the allegations were stated as:

“1. You stored and displayed explicit pornographic images using the bank’s email system over a period of time.

2. You forwarded explicit pornographic material using the bank’s email system over a period of time.

3. That these behaviours are a direct breach of the ANZ Code of Conduct.”

The Tribunal makes the same observations concerning the meeting notes in respect of the disciplinary meeting with Grievor 2 as it had made in respect of the notes for the meeting with Grievor 1. Grievor 2 was informed at the end of the meeting that he was to be summarily dismissed and this was confirmed in writing by letter dated 19 April 2007 which stated:

“On 19th April 2007 you attended a formal disciplinary meeting to discuss allegations of serious misconduct that were made against you.

The allegations were that you used the bank’s system inappropriately and breached ANZ’s Code of Conduct and the ANZ Systems and Equipment policy. Specifically, the allegations were:

1. You stored and displayed explicit pornographic images using the bank’s email system over a period of time.

2. You forwarded explicit pornographic material using the bank’s email system over a period of time.

Following investigations by ANZ Group Investigations and discussions held with you in the interview on 19th April 2007, the Bank has deduced the following:

1. In the month of March 2007 you received, stored and transmitted explicit sexual images that were offensive and defamatory in nature using ANZ’s system;

2. On 4th February 2007 you also transmitted hardcore sexual images from your personal email address (rushed [e-mail]) to your ANZ email address.

3. You were aware of the Use of ANZ Systems and Equipent Policy.

In the disciplinary interview on 19th April 2007 you agreed to the following:

- Breach of ANZ Code of Conduct Fiji

- Breaching the "Use of ANZ Systems and Equipment" policy;

As a direct consequence of the concerns highlighted above and the information supplied through ANZ Group Investigations, I now confirm that the Bank views your actions as a serious breach of both your employment and collective agreements.

In terms of the Collective Agreement Clause 4 B ii) a) and Clause 12 (d) (i) & (ii) of your Service Agreement, you are hereby dismissed from the Banks services with immediate effect.

As advised in our meeting ANZ wishes to extend to you the services of our Employee Assistance programme (EAP). If you require the contact details, please contact me."

It is appropriate for the Tribunal to comment briefly on the Bank’s conclusions as stated in the dismissal letter.

The evidence before the Tribunal did establish that the Bank had reasonable grounds for honestly and genuinely believing that in March 2007 Grievor 2 did receive and store the explicit sexual material. However the only evidence before the Tribunal was that two of those emails were transmitted by the Grievor to himself at his "yahoo".

The Employer also had reasonable grounds for honestly and genuinely believing that Grievor 2 did on 4 February 2007 transmit the same 2 emails with their pornographic attachments from his "yahoo" address to his email address at the Bank.

The Tribunal does not accept the assertion put forward by Grievor 2 both at the disciplinary hearing and at the hearing before the Tribunal that he never opened any of the attachments. Whilst he may not have had the time to open all the attachments, the Tribunal cannot accept that the Grievor did not open at least one attachment when he was browsing through his email inbox either on his ANZ address or his yahoo address.

However there are some extenuating circumstances which need to be considered. First, Grievor 2 did not download this material from either the internet or from a floppy disk or CD. The material was forwarded to him through the email. The Bank’s witnesses both appeared to acknowledge that recipients of email cannot by themselves control what is delivered into their inbox.

It was apparent that the Bank’s control systems did not prevent emails being delivered as long as thee was no offensive word in the title.

If the Bank’s main concern about offensive (including pornographic) material was that it might offend people or is otherwise against the interests of ANZ or its customers, then the misconduct of Grievor 2 may be assessed as being not as serious as might first be thought. Although stored for some time between February and April 2007, the material was apparently not seen by anybody else and was only emailed by Grievor 2 from and to his ANZ email address.

There was material before the Tribunal which indicated that the Bank had taken a more lenient approach with respect to an employee who much later (December 2007) admitted to using the Bank’s email system to transmit explicit pornographic images. The Employee concerned was issued with a formal warning letter.

The Tribunal notes that Grievor 2 is a relatively young man with his whole working life ahead of him. He had already acquired a degree of responsibility at the Employer’s Waimanu Road Branch as Headteller. It was accepted that his work performance was good and that this was his first disciplinary incident. He has been unsuccessful in obtaining full time employment and is unlikely to be able to do so in banking or business in view of his summary dismissal which, it is accepted, does inevitably carry a stigma.

Summary dismissal is the most serious disciplinary measure that could have been imposed on Grievor 2 for his misconduct. Section 28 of the Employment Act retains the right to summarily dismiss an employee for serious misconduct equivalent to a fundamental breach of contract. The Tribunal is not satisfied that the Bank took into account the actual nature of the misconduct and as a result failed to consider all other possible forms of disciplinary action before it imposed the measure of last resort. The right to fair labour practices guaranteed to Grievor 2 under section 33 (3) of the Constitution dictated that the Employer should have done so.

The decision to summarily dismiss the Grievor was made during a break in the disciplinary meeting on 19 April 2007. The Tribunal is not satisfied that
the decision maker (Mr Bell) was made fully aware of all the circumstances which constituted the misconduct.

The Tribunal has also concluded that the Bank failed to consider the fact that there was no evidence that the reputation of the Bank had been adversely affected by the Grievor’s misconduct. Furthermore there was no evidence that its customers or for that matter any of its other employees had become aware that the Grievor had transmitted the material from his ANZ address to his Yahoo address and then back again to his ANZ address.

Although these matters do not justify the disobedience, they do serve to lessen the seriousness of the misconduct.

The Tribunal has also noted that it is not unusual for an employee such as one in the position of Grievor 2 to be given a warning by an employer for a first offence of this nature and hence a second chance. [See Fiji Bank and Finance Sector Employees Union –v- Colonial (Award No 43 of 2005 dated 2 August 2005)].

The Tribunal accepts that this is a borderline case but that in all the circumstances it would be appropriate for Grievor 2 to be given a second chance. The Tribunal is satisfied that a reasonable employer acting reasonably in the context of the employment situation in present day Fiji would have concluded that summary dismissal was outside the range of reasonable responses.

The Bank has submitted that the Tribunal should follow the decision in Award No 36 of 2007 dated 26 June 2007 (Fiji Electricity Workers Association –v- Fiji Elecricity Authority).

However the Tribunal has concluded that the facts of the two Disputes are sufficiently distinguishable for the Tribunal to conclude that the outcome in the present Dispute should be different from that in the earlier Award.

In Award No 36 of 2007, the Dispute involved a much older, more mature and more experienced Grievor. The pornographic material had been downloaded onto the Grievor’s hard drive with his knowledge and approval. The Grievor had allowed the material to remain stored in his hard drive for a prolonged period and had done nothing to arrange for its removal from the Employer’s system.

There is one final observation concerning the procedure adopted by the Bank. Although the procedure was the same for both Grievors, it would appear that remarks are now more relevant to the case of Grievor 2.

It is acknowledged that there was a disciplinary hearing conducted by the Bank’s MHR in the presence of a union representative. Grievor 2 was given an adequate opportunity to answer questions and put forward his explanations. However there is one aspect of the process which is of some concern to the Tribunal. It is accepted that an employee, especially one who is facing summary dismissal, should be given the opportunity to mitigate as to penalty. The mitigation should desirably take place before the person who is to make the decision whether the employee is to be summarily dismissed. If that is not practicable, then the opportunity to mitigate as to penalty should be made available to the employee as a separate or distinct part of the process at the disciplinary hearing.

In this case, the notes of the disciplinary meeting indicated that prior to the break in the meeting, the discussions had been concerned only with the facts of the misconduct and the Grievor’s explanations.

In effect, following the break, Grievor 2 was informed that he was to be summarily dismissed. The decision to do so having been made by management during the break.

There was no indication in the material before the Tribunal that management had considered any of the factors which would usually be considered at that point in the disciplinary process. In the absence of an opportunity for Grievor 2 or his representative to mitigate as to penalty, the Tribunal is left with the conclusion that the Employer did not take into account at all or sufficiently any mitigating factors and as a result the procedure was unfair.

It would also appear that the Employer has not complied with clause 13 (b) (ii) of the Collective Agreement. The interview referred to in that clause is the interview referred to in clause 13 b(i). There was no evidence before the Tribunal that the Employer had complied. The Grievor was simply told that he had been dismissed with immediate effect, rather than being told that the Employer proposed to take that disciplinary action.

In all the circumstances, the Tribunal has concluded that the decision to summarily dismiss Grievor 2 was unreasonable and unfair. There was no material before the Tribunal to suggest that re-instatement would be inappropriate. It is appropriate that Grievor 2 be issued with two warnings. The first warning (for storing) is deemed to have been issued on 20 May 2007 being the date the Dispute was reported. The second warning (for transmitting) is deemed to be issued on the date of this Award. Grievor 2 is subject to clause 13 (a) in the Collective Agreement which deals with termination and warnings.

AWARD

The summary dismissal of Grievor 1 was unreasonable and unfair. His re-instatement is not appropriate as Grievor 1 is now in permanent full time employment. There is no further Award in respect of Grievor 1.

The summary dismissal of Grievor 2 was unreasonable and unfair. He is to be re-instated from the date of his dismissal. His time away from employment is deemed to be leave without pay. Grievor 2 is to be issued with two warnings. The first warning is deemed to have been given on 20 May 2007 and the second is deemed to be given on the date of this Award.

DATED at Suva this 19^th day of March 2008.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL