Ranjani v Fiji Islands and Revenue Customs Authority [2009] FJET 28; ERT Grievance 07.2009 (14 September 2009)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

ERT Grievance No. 07 of 2009

BETWEEN:

Ms. NILAM RANJANI
APPLICANT

AND:

FIJI ISLANDS AND REVENUE CUSTOMS AUTHORITY
RESPONDENT

For Ms. Nilam Ranjani: Mr. D. Nair
For FIRCA: Mr. B. Solanki

DECISION

This employment grievance came to the Tribunal via the Mediation Services and the nature of the grievance is the following:

(1) The employee Ms. Nilam Ranjani employed by Fiji Islands Revenue and Customs Authority (FIRCA) claims that her promotion to the post of Senior Customs Officer has not been backdated from 05/01/04, the date the griever was appointed to act on the post.

(2) The griever has already been paid 95% of the sum during the acting period. The employer refuses to pay the balance of 5% to the griever.

(3) The Griever alleges that she was unfairly treated and discriminated against.

Mr. Nair introduced two witnesses; Ms. Ranjani herself and a Mr. Ramesh Jattan. Mr. Solanki told the Tribunal that FIRCA would have only one witness; Ms. Mele Nalaukai.

Evidence of Ms. Nilam Ranjani

Ms. Ranjani told the Tribunal that the genesis of her grievance was in the letter from the Chief Executive officer to the General Secretary Fiji Public Service Association dated 18th December 2008 in which the boss of FIRCA advised that her promotion would not be backdated. She then took the Tribunal back to 31/10/05 when the post of Senior Customs Officer was advertised internally on the website and that she was short listed. She was interviewed and on 12/01/06 she was offered the post of Senior Customs Officer. On 13/01/06 she wrote to management accepting the offer for the position of Senior Customs Officer.

Ms. Ranjani related to the Tribunal that she was finally given her letter of promotion on 21/06/07 some eighteen months later and that the promotion was backdated to 12/02/07. She told the Tribunal that she fully met the minimum qualification requirements and that prior to promotion she had performed the duties of the post in an acting capacity from 25/01/04 and was being paid the full acting allowance.

When questioned by Mr. Nair as to the reason why her appointment was not backdated, she replied that she did not know the reason and could not explain. Even management was not in a position to give reasons although there were opportunities to do discuss this issue in monthly meetings where the Chief Executive Officer and the Manager Legal participated in. As she saw it, the issue of backdating was discussed and assurances and positive remarks were made to her and that raised her legitimate expectations.

Ms. Ranjani confirmed that Mr. Rajeshwar Singh the General Secretary for the Fiji Public Service Association also attended these meetings.

Under cross examination by Mr. Solanki, she agreed that she acted for three monthly periods on a renewal basis and that the acting ceased on 21/01/05 when she went on secondment. After secondment she went back to FIRCA Customs Division as a Customs Officer. She did not receive any more acting letters as she was on a subordinate position but performing the duties of Senior Customs Officer with no allowances. She did complain to her immediate supervisor who promised to take it up with management.

On re-examination Ms. Ranjani confirmed she had complained to her immediate boss who had promised to take it up with management.

Evidence of Mr. Ramesh Jattan

Mr. Jattan has been with FIRCA for the last 35 years and is currently Manager Revenue. He was with ASYCUDA (automated system for customs data) as Senior Manager between 1999 and 2003 and is aware of the grievance raised by Ms. Ranjani.

Mr. Jattan explained that the griever joined as a Customs Officer and when the Senior Customs Officer post became vacant, it was recommended that she be given full acting to be reviewed on a quarterly basis. Ms. Ranjani commenced acting on the post from 05/01/04, with full acting allowance and paid overtime at the applicable rate.

Mr. Jattan maintained that she continued to perform the duties of the post and referred to a statutory declaration he signed to the effect that Miss Ranjani was appointed to act as Senior Customs Officer on 05/01/04 carrying the responsibility of the said post till she was promoted and confirmed as a Senior Customs Officer (ASYCUDA) on 12/02/07.

When asked whether in the thirty plus years of service he had come across a similar case, Mr. Jattan explained that he is fully aware as he was once a victim of such a case.

Under cross examination, Mr. Jattan explained that on 16/05/05 he was Acting Manager Revenue and as Ms. Ranjani immediate supervisor, he was fully aware of the procedures and the duties to ensure that FIRCA functions properly and efficiently and well within the rules.

Mr. Jattan agreed that Ms. Ranjani raised the grievance with him and that he wrote a minute to the supervisor to formalize the acting. Towards that end he referred to a memorandum he sent to the National Manager ASYCUDA National Team recommending Ms. Ranjani for acting in a vacant Senior Customs Officer's post. The same memorandum was later on sent to General Manager Mr. Madhu Sudan through the Human Resources Department.

Mr. Jattan added that his recommendation for acting was not formalized but he kept on sending reminders and when there was still no response, he went to see his National Manager and also the General Manager. The two years gap before promotion showed the difficulties in FIRCA in regards to making appointments.

In re-examination, Mr. Jattan said that he also took the issue to the usual monthly meetings for resolution.

Evidence of Ms. Mele Nalaukai

Ms. Nalaukai has been Manager Human Resources since June 2008 and that she started with FIRCA in 2000 as a Customs Officer. In 2002 she had worked in human resources and has about seven years' experiences in that field.

She adduced evidence that as head of human resources, all appointments including acting appointments matters would come to her table and that "Human Resources Directions" would be adhered to in the interpretation and implementation of the relevant provisions of the Collective Agreement. These directions have the approval of the unions and are part and parcel of the everyday function of the Human Resources Division at FIRCA.

On the effective date of promotion, Ms. Nalaukai said that Clause 3.4.2 of the Human Resources Directions says "the date of appointment is the date on which the Officer assumes duty" and in this case it would be 21/06/07 the date on which she received her letter of promotion.

Ms. Nalaukai stressed that when the griever accepted the offer of promotion on 13/01/06 she was not acting as Senior Customs Officer due to a trade dispute lodged by Fiji Islands Revenue Customs Officers Staff Association (FIRCOSA) with the Ministry of Labour. That also affected the appointment of 38 other Senior Customs officers and at the FIRCA Staff Board meeting held on 08/02/07 it was resolved that the appointments be effected and advertisements be made for the remaining vacant positions..

On the claim that promotion be backdated to 2004, Ms. Nalaukai pointed out that it could not be done as the position was not advertised in 2004 but in 2005. If one went through the process thoroughly, it would be like this –

2005(Advertised) ----2006(Appointment stalled) ----- 2007(Appointment made)

Ms. Nalaukai explained that Ms. Ranjani's acting ceased on 21/01/05 the date of her secondment as indicated in the letter dated 20/01/05 from the National Manager Human Resources and that there is nothing on file regarding her grievance including the letters that were supposed to be sent from Mr. Jattan her immediate supervisor.

When asked whether it is usual for acting appointments to be pending for two years, Ms. Nalaukai said that is not usually the case and added that Ms. Ranjani could have used the grievance procedure in the Collective Agreement to register her grievance with management.

Under cross examination, Ms. Nalaukai stated that she is aware that the griever was acting in 2004 from records in her personal file and from flimsies of correspondence on the subject. She pointed out that memorandums from Mr. Rattan were not on file.

Replying to a question from Mr. Nair she agreed that the griever had done her part and that the problem seemed to be with the Managers.

On the delay in the appointment, Ms. Nalaukai confirmed that it was due to a trade dispute reported by the in house union resulting in a stay of the appointments as required by the provisions of the Trade Disputes (Amendment) Act 2003.

On the "Human Resource Directions", Ms. Nalaukai stressed that the unions were consulted but there was no memorandum of understanding or signed agreement.

When asked whether the griever was acting as Senior Customs Officer on 21/06/07 the date of her letter of promotion, Ms. Nalaukai answered that she was not acting.

On the basis of back dating, Ms. Nalaukai reported that the Staff Board chaired by the Chief Executive Officer agreed on 12/02/07 as a blanket date for everybody since it would be fair and equitable to everyone as some had acted and some not.

Ms. Nalaukai agreed that since the griever had accepted offer letter in 2006 after the post was advertised in 2005, her promotion would have been backdated to 2006 had it not been for the trade dispute reported to the Ministry of Labour.

During re-examination Ms. Nalaukai confirmed that the unions were consulted and were sent copies of the "Human Resources Directions" for perusal and comments. That the Directions do not contradict the Collective Agreement and they are used as guidelines for the implementation of the Collective Agreement and that reported dispute to the Ministry of Labour stalled the appointments in 2006.

Consideration

While examining the evidence tendered they all pointed to the effects of the built in system and process of doing things at FIRCA. What is alarming is the duration of time in which an officer is allowed to act in a senior position and then be given a letter terminating the acting appointment, whilst the officer still continued doing the job of the senior position as alleged.

That is the position of Ms. Ranjani and that is her grievance. From her evidence the Tribunal could not establish whether she belonged to one of the three unions at FIRCA but a pay slip tendered by Mr. Jattan in his evidence showed that she is a member of the Fiji Public Servants Association.

In her evidence, she did not raise the issue of discrimination under Part 9 dealing with Equal Employment Opportunities in the Employment Relations Promulgation 2007 and did not specify the criteria to be applied. She left it to the Tribunal to decide by implication that the provisions dealing with equal employment opportunities have been breached by FIRCA. That is fatal to her case.

The evidence by her immediate supervisor Mr. Jattan did not help either as he concentrated on proving that he had done his role by raising the grievance with management and not the degree of attempts he had made to convince FIRCA to change its position.

Ms. Nalaukai proved to be a worthy witness for FIRCA as she outlined the operations of the "Human Resources Directions", the process of acting appointments and the maintaining of the status quo when a dispute is reported to the Ministry of Labor to be existing between a union and FIRCA. She even suggested that the griever should have used the grievance procedure to register her grievance with management.

The Tribunal looked at the issue of backdating of promotion first and is satisfied from the evidence that the griever's acting appointment ceased on 21/01/05 the date of her secondment and when she resumed after 16/05/05 it was at the lower level and that she was not given any further acting appointment letters.

Ms. Ranjani's contention is that she continued to perform the duties of a Senior Customs Officer as collaborated by Mr. Jattan who had signed a statutory declaration to that effect. That declaration was signed on 14/01/09 apparently to support the fact that she was performing the duties of the senior post. Whilst the Tribunal has taken note of that it does not offer credence to the position of the griever as she must show that FIRCA management had full knowledge that she was performing the duties of a higher post and that it did nothing.

The Tribunal felt for the griever as it seems obvious that there is no system and process to acknowledge employees who have been acting for long periods. Her immediate supervisor did what he thought was the best by making recommendations to his supervising officers and human resources division.

Ms. Ranjani was finally promoted on 21/06/07 backdated to 12/02/07 and the Tribunal agrees with the evidence and explanations provided by FIRCA. The stalling of appointments in 2006 was due to a reported dispute to the Ministry of Labour and FIRCA under the old legislation was required to maintain the status quo; which in effect means that all appointments would be put on hold.

The Tribunal makes the point that here in Fiji the notion that an employer must deal with an employee in good faith is not strictly provided for in the law, unlike in New Zealand where section 4 of the Employment Relations Act 2000 is an overarching provision covering both individual employees and the unions. In Fiji good faith is associated with collective bargaining between unions and employers and not with employers and individual employees.

Whereas in New Zealand, section 4 reads as follows –

Good faith employment relations

4. Parties to employment relations to deal with each other in good faith

(1) The parties to an employment relationship specified in subsection (2) –

(a) must deal with each other in good faith; and

(b) without limiting paragraph (a), must not, whether directly or indirectly, do anything –

(i) to mislead or deceive each other; or

(ii) that is likely to mislead or deceive each other

Subsection 2 The employment relationships are those between –

(a) an employer and an employee employed by the employer:

(b) a union and an employer:

(c) a union and a member of the union:

(d) a union and another union that are parties bargaining for the same collective agreement:

(e) a union and another union that are parties to the same collective agreement.

(f) a union and a member of another union where both unions are bargaining for the same collective agreement.

(g) a union and a member of another union where both unions are parties to the same collective agreement:

(h) an employer and another employer where both employers are bargaining for the same collective agreement.

The Tribunal is raising this issue in view of the length of acting time at senior level that was endured by the griever.

In Simpsons Farms Ltd v Aberhart [2006] NZEmpC 92; [2006] ERNZ 825 Chief Judge Colgan held at paragraph 65:

...A fair and reasonable employer must, if challenged, be able to establish that he or she or it has complied with the statutory obligations of good faith dealing in section 4 including as to consultation because a fair and reasonable employer will comply with the law.

If there was such a provision in our laws, then Ms. Ranjani's claim can be considered. However, in the absence of similar provisions, the Tribunal has to rely on the evidence tendered.

The Tribunal is not required to rule on whether FIRCA is a fair and reasonable employer but will point out that as an employer it had strictly observed "Human Resources Directions" in the implementation of collective agreement and that it had followed procedures in the acting appointments and on the promotion of Ms. Ranjani.

The applicant has not tendered evidence to support her claim for unfair treatment and discrimination and for that reason Ms. Ranjani cannot succeed in her claim to have her promotion backdated to 05/01/04 thus she is not entitled to the balance of 5% accrued from the acting periods.

DATED at Suva this 14th day of September 2009

Sainivalati Kuruduadua
Chief Tribunal