Tawake v National Fire Authority [2008] FJET 9; Misc02.2008 (20 December 2008)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

Miscellaneous No 2 of 2008

BETWEEN:

SOLOMONI TAWAKE

AND:

NATIONAL FIRE AUTHORITY

Worker: Mr J Raikadroka
Employer: Mr J Koroi

DECISION

By letter dated 15 October 2008 the Mediation Unit forwarded to Mr Solomoni Tawake (the worker) a Notice to Attend Mediation (Form ER2). The first session of mediation was scheduled for 22 October 2008 at Civic House 5th Floor. The Notice to attend Mediation was addressed to both the worker and to the National Fire Authority (the Employer).

It would appear that the Employer wrote to the Ministry of Labour, Industrial Relations and Employment (the Ministry) in relation to the requirement under section 111 (2) of the Employment Relations Promulgation 2007 (the

Promulgation) that the worker must submit his grievance to the employer within 6 months from the date on which the action alleged occurred unless the employer consented to extend that period.

Although the Tribunal was not provided with a copy of the Employer's letter dated 3 October 2008 to the Ministry, it would appear that the Employer in raising the time limitation would not consent to any extension of time.

As a result the Permanent Secretary for Labour, Industrial Relations and Employment (the Permanent Secretary) in a letter dated 23 October 2008 informed the Employer that the worker would be advised to make an application pursuant to section 111 (3) of the Promulgation for the time to be extended. A cc copy of that letter was addressed to the worker.

The worker subsequently sent a letter dated 10 November 2008 to the Tribunal setting out some of the background information to the grievance. The Tribunal deemed the letter to be an application to extend the period for submitting the grievance to the Employer.

The application was listed for mention on 19 November 2008. On that day the Tribunal directed that the worker provide the employer with a copy of his letter dated 10 November 2008 (the application) within seven days. The application was listed for hearing on 3 December 2008.

The hearing of the application commenced on 3 December 2008. The worker was represented by counsel and the employer was represented by its Director Corporate Services who had been authorized in writing to appear. After some initial submissions and preliminary observations, the application was adjourned part heard to 11 December 2008.

The hearing of the application was completed on 11 December 2008. The worker gave evidence in support of his application and the employer did not call any evidence. Both parties made brief oral closing submissions at the conclusion of the evidence.

The facts that are relevant to this application may be stated briefly Under a contract of service dated 18 April 2001 the worker was appointed Chief Executive of the National Fire Authority for a period of 2 years. Clause 3 of the agreement provided for the payment of an annual basic salary of $47,303 per annum to the worker. Clauses 6, 7 and 8 provided for the payment to the worker of certain specified allowances.

As a result of a job evaluation exercise the Board of the National Fire Authority prepared submissions for the consideration of the High Salaries Commission.

In a letter dated 20 February 2003 to the Chairperson of the National Fire Authority, the Manager of the Higher Salaries Commission (the Commission) replied as follows :

"Remuneration Adjustment for Executive Management Positions National Fire Authority

Your submission to the Commission of late November 2002 is relevant.

The Commission has approved the total remuneration packages for the executive management positions National Fire Authority effective from 1 January 2003 bearing in mind affordability.

[Chief Executive Officer - Total

Remuneration $80,000 ]

- - - - "

By letter dated 1 September 2004 the worker wrote a letter to the employer that raised a number of issues including the yet to be implemented decision of the Commission that approved the adjustment of the total remuneration package for contract officers and more particularly his own total remuneration.

The worker's appointment came to an end in September 2005. The adjustments were not implemented until sometime after the worker had left the employer.

Generally, the matters that are required to be considered in an application such as the Application currently before the Tribunal are: a) the length of the delay; (b) the reasons for the delay; (c) the merits of the worker's grievance and (d) any prejudice caused to the employer by the delay.

The first matter to be considered is the length of the delay. The worker gave evidence that he first became aware of the Commission's decision in about March or April 2003. The worker first wrote to the Employer about the grievance in September 2004. The delay in raising the grievance in writing was about 18 months.

Clause 111 (2) requires the worker to submit the grievance to his employer within six months from the date on which the action alleged occurred. Even if the Tribunal accepted that the time begins to run from the date on which the worker first became aware of the Commission's decision, the worker's letter dated 1 September 2004 is well outside the period. The use of the word "submits" in section 111 (2) suggests that the worker is required to raise his grievance with the employer in writing.

Secondly, the reason for the delay. The worker stated in his evidence before the Tribunal that he had raised the matter on many occasions with both the Chairperson and at Board meetings after becoming aware of the Commission's decision and certainly within six months of becoming aware of the decision.

The worker indicated that it was only after those representations had failed to secure the implementation of the Commission's decision that he decided to write. The material also suggests that the worker's annual renewal of his contract of service may have been an additional reason for not raising the issue in writing prior to 1 September 2004.

The Tribunal notes that the worker was not cross- examined on this aspect of his evidence. Furthermore the employer did not call any evidence to contradict the worker's evidence.

As a result the Tribunal accepts the worker's evidence on both the question of the length of the delay and also the reasons for the delay. Taking that evidence into account the Tribunal is satisfied that it should exercise its discretion in favour of the worker on those two issues.

As for the merits of the worker's grievance, the Tribunal is satisfied on the material that has been made available that the worker has at least an arguable case for his claim. The Tribunal notes the unchallenged evidence of the worker that he was never informed that affordability was a reason for not implementing the pay adjustment decision of the Commission.

On the evidence before it the Tribunal is satisfied that the employer has not established any prejudice if the application were to be granted.

As a result the Tribunal has concluded that the application should be granted. The period within which the grievance should have been submitted to the employer is extended to the date upon which the worker's letter dated 1 September 2004 was received by the Employer.

Finally, there is one further observation that needs to be made. The Promulgation came into effect on 2 April 2008. The Promulgation doers not have retrospective effect. Although the worker may report a grievance that arose prior to 2 April 2008 and may seek redress under the Promulgation in respect of that grievance, the time limit imposed by section 111 (2) did not operate retrospectively. In 2003 and 2004 the worker was not required to submit his grievance to the employer within the period of six months because at that time there was no legal requirement to do so as the Promulgation was not in force at that time.

The employer is directed to pay the worker's party/party costs of this application. Such costs are to be agreed by the parties. If costs cannot be agreed, liberty is granted to the worker to apply for the application to be relisted for mention.

The grievance itself is to be referred to the Mediation Services and to be dealt with in accordance with the legislation.

DATED at Suva this 20th day of December 2008.

EMPLOYMENT TRIBUNAL