Tuicicia v National Fire Authority [2011] FJET 10; ERT Grievance 55.2009 (22 June 2011)

IN THE EMPLOYMENT RELATIONS
TRIBUNAL AT SUVA

ERT Grievance No. 55 of 2009

BETWEEN:

MR. WAISEA TUICICIA
GRIEVOR

AND:

NATIONAL FIRE AUTHORITY
EMPLOYER

Appearances:
Mr. D. Nair for the Applicant
Mr. M. Kama for the Respondent

DETERMINATION OF THE TRIBUNAL

The Employment Relations Problem

1] The summary dismissal of Mr. Waisea Tuicicia by the National Fire Authority on 27th May 2009 due to an allegation of unlawful use of fuel cards allocated to National Fire Authority fire vehicles and procured fuel and or cash amounting to $11,206.97 from a service station which was a breach of Clause 7.1.1 (a), Clause 7.1.1 (e) and Clause 7.1.1 (g) of the Memorandum of Agreement.

Mr. Waisea Tuicicia is seeking reinstatement to the same position without loss of benefits.

References

2] In this proceeding:

- the Griever Mr. Waisea Tuicicia shall be referred to as ("WT")

- the Employer, National Fire Authority shall be referred to as ("NFA")

- the Union Fiji Public Service Association shall be referred to as ("FPSA")

Background and Evidence

3] NFA submits that WT, a Senior Firefighter, Suva Fire Station was charged by NFA under its internal disciplinary procedure on 11th September 2007 for unlawfully using fuel cards allocated to NFA vehicles. It was alleged that WT purchased fuel for another private vehicle registration number EG 132 and also unlawfully withdrawing cash from a service station around June 2006 and September 2006. WT was given 14 days to reply to the charges and was later suspended also on 7th September 2007 with half a salary due to the seriousness of the alleged offence. It was alleged that he was given 14 days to reply to the charges and was then terminated on 3rd October 2007. WT appealed the decision of termination on 23rd October 2007 and was advised that the hearing will be heard in due course.

4] The allegation of theft was also reported to the Raiwaqa Police Station by NFA on 12th September 2006, and the case was then heard by the Magistrate Court in Suva on 20th November 2008' The criminal charges were dismissed and WT was acquitted on both counts under the section 210 of the CPC.

5] WT was re-charged by NFA on 29th April 2009 in accordance with the Appeal's Board recommendation and the hearing was chaired by Mr. Joseva Gavidi the CEO of NFA and with two independent members. In the same letter of 29th April, WT was advised that he has 14 days to reply in writing to NFA whether he accepted or denied the charges.

6] FPSA wrote to NFA on 4th May 2009, requesting that the charges on WT be deferred until such time the new NFA Disciplinary and Appeal machinery process is finalized. NFA replied on 6th May 2009 and emphasized in the letter the need for WT to respond to the charges by 13th May 2009 and did not agree to the request for the deferment of the charges.

7] FPSA wrote on 11th May 2009 to NFA for the adjournment of all disciplinary proceedings and at no stage WT agreed or denied the charges as required under the MOA between NFA and FPSA.

8] WT was terminated on 27th May 2009 for not responding to the 29th April 2009 charge letter in accordance with the MOA. NFA submits that the termination was a Board decision and was also based on the criminal offence committed against NFA.

9] FPSA submits that the termination of WT on 3rd October 2007 was wrong and procedurally unfair in that the reasons given for the termination was that WT did not reply to the charges and as such NFA assumed that the non action to be an admission of guilt as outlined in the Chief Fire Officer letter to WT dated 3rd October 2007. Wt maintains all along that since he was suspended he could not enter the workplace and had to pass his reply to the charges to management through a fellow worker by the name of Biu Vakatale as witnessed by Iowane Maivusa also a fellow worker.

10] WT did send his appeal and was acknowledged by NFA which informed that the hearing of the Appeal would be held on 25th February 2009. Mr. Joseva Gavidi the CEO of NFA was the Chairman of the Appeals Board together with two independent members. The Board decided that WT be re-charged and that was done on 29th April 2009 with 14 days to reply whether he accepted or denied the charges.

11] WT was again terminated on 27th May 2009 for not responding to the charges according to the MOA.

Analysis and Conclusion

12] There is definitely something that has gone amiss between NFA and WT. One employee in the person of WT charged twice by NFA within two years with the same offence and the WT on both occasions alleged to have failed to reply to the charges.

13} From the submission it can be seen that FPSA tried to maneuver union negotiations to include discussions on the case of WT. The fact is that during the relevant period, the FPSA and NFA were finalizing the setting up of the NFA Disciplinary and Appeal machinery process and the FPSA had written on 4th May 2009 that WT case await the setting up of the machinery. That did not happen and that could be the reason why WT failed to send in a reply.

14] During the hearing in the Tribunal, NFA produced the supervisor and the bowser attendants of the service station that is the subject of this case and their evidence is inconsistent and too general to remove reasonable doubts.

15] Divisional Fire Officer Mr. Qionilau Moceitai conducted the initial investigation of WT who worked under him. In evidence Mr. Qionilau confirmed that he conducted an investigation for the Police and that there was no formal report compiled and as such no report was given to WT. He also confirmed that he was in Australia when the matter was called in the Magistrates Court.

16] Mr. Waisea Vakalolo was in charge all NFA vehicles in the areas of repairs and re-fuelling and reported directly to the Chief Fire Officer. He confirmed that there was an investigation and that WT's name was mentioned. He knows WT to be well disciplined, holding a Group II license and that he was surprised that his name came up.

17] Mr. Waisea Vakalolo continued that his job was to collect all fuel cards and lock them in the safe and he remembered that some missing cards were re-appearing and that some idle vehicles were being fuelled. Mr. Vakalolo also reported that everyone had access to pin numbers and from what he heard in the office was that there was no substantive evidence against WT.

18] The FPSA submits that NFA contravened clause 7.2 of the Collective Agreement which outlines the procedures which should be followed in any disciplinary process before the penalty is imposed

19] Furthermore, the contents of the termination letter dated 27/05/2009 had inaccurate particulars not consistent with the facts of the events that had transpired; therefore for NFA to rely upon those facts and terminate the employment of WT is unfair, unreasonable, and ultravires.

20] The FPSA stresses to the Tribunal that the evidence of WT confirmed that he was not accorded the due disciplinary process and procedural fairness and this was not disputed by the NFA. The reasons given by NFA in its letter dated 27/05/2009 in terminating WT was unjustified; firstly all the given dates of the events that had taken place were fictitious, inconsistent, and tenuous; secondly WT had responded to the disciplinary charge, therefore the reason given by NFA for the dismissal on the grounds that WT did not respond to the disciplinary charge is unfounded, inaccurate, tenuous and unjustified as the NFA had duly acknowledged that the WT had submitted his response to the disciplinary charge within the required time frame.

21] The NFA was required to uphold the due process of fairness by providing the WT with a copy of the investigation report, which formed the basis of the disciplinary action against him and subsequently resulted in the termination of his employment. The failure by the employer to provide the investigation report denied the griever the due process of natural justice.

22] The FPSA further submits that in determining the truth of the charge, NFA failed to constitute a disciplinary committee to allow the grievor to be tried by an independent and impartial tribunal. The NFA executed the role of judge, jury and executioner.

23] According to FPSA, clause 7.2 and 7.6 of the Collective Agreement stipulates the disciplinary procedures that should be followed in any disciplinary matter and in this regards it is submitted that the NFA had outright contravened these provisions of the Collective Agreement. Although WT had responded to the disciplinary charge and the evidence confirmed that the WT's response was received by NFA within the requisite time frame, the NFA proceeded and terminated the employment of the WT based on the same premise that he did not respond to the disciplinary charge.

24] In that connection, the FPSA submits that WT was denied the right to cross examine the person(s) who had made adverse comments against him before the same was considered by the NFA in terminating his employment.

25] Furthermore NFA failed to provide the WT with the finding of the Appeal Committee that was constituted to determine his appeal. This denied WT the due process of the appeal remedy and his right to seek redress within the provisions of clause 7.6 of the Collective Agreement.

26] The Tribunal finds that these are not minor procedural inadequacies and as such the action of the NFA is to be subjected to the test of justification as found in section 103A of the New Zealand Employment Relations Act 2004. The Tribunal is using this test due to the genesis of our current law in New Zealand and it is also because of the fact that the New Zealand law has been refined over the years to address changing circumstances.

27] The test for justification which applies to claims of unjustifiable dismissal or disadvantaged is the following:

...The question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering whether the employer's actions, and how the employer acted, were what a reasonable employer would have done in all the circumstances at the time the dismissal or action occurred.

The employer must show that a dismissal was justified substantially and procedurally and this was where the employer fell short.

All the circumstances at the time the dismissal occurred would include the type, resource and size of the organization.

NFA is a big employer, established by statute to protect the employers, workers and people of this country from fire and its associated hazards and the manner in which it treated WT like the way it determined his guilt without allowing him to answer the charges or considering his answers to the charges do not qualify as a minor procedural defect.

28] From the evidence the Tribunal is satisfied that NFA did not make any attempt to accord WT all the fair procedures as stipulated in the leading case of NZ Food Processing, IUOW v Unilever 1NZILR 35; [1990]. It says that the employee must be given:

- Notice of the specific allegation and its gravity and possible outcome;
- An opportunity to refute the allegations (with an opportunity to have a representative, not simply a witness, present) and
- Unbiased consideration of the employee's explanation.

29] A dismissal following poor or unfair procedures will not necessarily result in the Tribunal finding that the dismissal was unjustified if the conduct was bad enough but may result in compensation. However, the Courts in New Zealand have recognized that most employers will not be able to provide perfectly fair procedures for dismissing employees. In BP Oil v NDU [1992] 3 ERNZ 483 (CA): the Court of Appeal said - "The question is essentially whether it was open to a reasonable and fair employer to do so in the circumstances."....

30] The Tribunal understands the position of NFA after the charges were dismissed and WT acquitted on all charges by the Magistrates Court. It has seen evidence that NFA was considering asking the Director Public Prosecutions to lodge an appeal, but it did not proceed to make a formal application. All of that should not affect the way it handled the situation of WT, for in employment relations there are certain standards to be met, and the degree of compliance to those standards separate the responsible employers from the strict ones.

Determination

31] The Tribunal makes the determination that WT has an employment grievance in that his dismissal was unfair and unjustified and under section 230 of the Employment Relations Promulgation 2007 Orders the following remedies:

(i) Reinstatement to former position with no loss of benefits and entitlements or
(ii) Reimbursement to WT the whole wages lost by him as a result of the grievance.

DATED at Suva this 22nd day of June, 2011

Sainivalati Kuruduadua
Chief Tribunal