Prasad v Nausori Town Council [2011] FJET 8; ERT Miscellaneous Application 08.2010 (13 May 2011)

IN THE EMPLOYMENT
TRIBUNAL AT SUVA

ERT Miscellaneous Application No. 08 of 2010

BETWEEN:

HIRENDRA PRASAD
GRIEVOR

AND:

NAUSORI TOWN COUNCIL
EMPLOYER

Appearances:
Mr. D. Nair for the Grievor
Ms. Ligabalavu for the Employer

______________________________________________________________________________

HEARING OF MOTION

The Motion
1] The Notice of Motion filed by the Grievor asked for the following Orders:

a] That an Order of Compliance be issued for the Nausori Town Council to fully comply with the Award No. 34 of 2008 dated 20th June 2008 issued by the Permanent Arbitrator.

b] That the Nausori Town Council backdates Mr. Hirendra Prasad's salary to 06/03/2006 the effective date of his promotion as Senior Rates Clerk.

c] Any further orders or relief which the Tribunal may consider appropriate in the circumstances.

2] The Motion was supported by an Affidavit from Mr. Hirendra Prasad, the Griever in this case. The Nausori Town Council through its Counsel also filed its statement of defence and the reasons why the Motion should be dismissed. The Tribunal relied on the evidence tendered at the hearing and the various written submissions made by the parties to make a decision.

References

3] In this proceeding:

- the Applicant Griever shall be referred to as ("HP")

- the Respondent Employer shall be referred to as ("NTC")

- the Arbitration Tribunal shall be referred to as ("AT")

- the Fiji Local Government Officers Association shall be referred to as ("FLGOA")

Background and Evidence

4] HP submits that on 20th June, 2008, the Arbitration Tribunal made an Award (Award No.34 of 2008), that "the employer's decision to award the Griever an incremental increase within his existing salary scale or range upon his promotion to Senior Rates Officer was unjust and inconsistent and the employer is required to review his salary structure as a result of his promotion".

5] It is in agreement that NTC partially compiled with the said Award and reviewed the HP's salary backdated to the date of the Award that is 20/06/2008.

6] The failure by NTC to fully comply with the said award resulted in HP asking his union, the FLGOA to write to NTC on 14/04/2009 outlining the following –

[i] that the dispute was referred to the AT on 27/09/07 with the following terms of reference...." For settlement over the Council's failure to afford appropriate salary despite promoting HP from Rates Clerk to Senior Rates Clerk effective from 06/03/06. The FLGOA claims that NTC's actions were unjust and inconsistent and seeks NTC to review the salary structure for the promotion."

[ii] that the AT made the following findings....."The Tribunal is satisfied that the evidence has established that HP's promotion was more than just redesignation of position title. There were substantive additional responsibilities placed on HP which indicated that he in fact had been promoted."

[iii] that the AT has concluded that the HP "...was promoted from rates officer to senior rates officer. That promotion imposed additional responsibilities on HP and required him to assume management role. As a result HP was entitled to be moved to the next salary range being NTO3 or Admin 1."

[iv] that NTC's decision to award HP an incremental increase within his existing salary scale or range upon his promotion to Senior Rates Officer was unjust and inconsistent and therefore NTC is required to review the salary in the next salary range being NTO3 or Admin 1 as directed by AT effective from the date of promotion, i.e. March 06, 2006.

7] According to HP, the NTC has not responded to the said letter referred in paragraph 6 above and has not fully complied with the said award of the AT.

8] The NTC in its defence submits that it has fully complied with the award in that it had begun implementing the process of reviewing salary structure by writing to the Public Service Commission on 21/04/09, due to its wide experience on employment relations matters and seeking advice in regards to writing up job description, re-evaluate job of Senior Rates Officer regularizing its relativity to other positions in the Council and how to deal with the backdating issue. The NTC also consulted with the other stakeholders on the issue.

9] The NTC has also in the letter dated 14/03/07 to the FLGOA clarified that there was no Senior Rates Officer position formally created as yet and the change of designation approved by NTC on 22/02/06 was merely to differentiate between the two rate officers; in other words HP would have been acting on the position as per internal arrangements until formalized.

10] The NTC further submits that since the Award was made by the AT, NTC in compliance with the Award had increased HP's salary to the next grade NTO3, as recommended by the FLGOA with effect from the date of the Award. That was interpreted as only partial compliance by the FLGOA as it wanted the salary increase backdated to 06/03/06 which was the date of promotion for HP.

Analysis and Conclusion

11] The trade dispute over this matter was reported to the Permanent Secretary for Labour under the old regime on 01/05/07 and the Permanent Secretary referred it to the AT on 27/09/07 with the following terms of reference:

..."for settlement over the Council's failure to afford appropriate salary despite promoting Mr. Hirendra Prasad from Rates Clerk to Senior Rates Clerk effective from 6 March 2006. The Union claims that the Council's action was unjust and inconsistent and seeks the Council to review the salary structure for the promotion."

12] On 20/06/08, the AT ruled that the employer's decision to award HP an incremental increase within his existing salary or range upon his promotion to Senior Rates Officer was unjust and inconsistent.

13] Whilst the Tribunal does not want to re-visit the finding of facts made by AT, it will instead attempt to look at the degree of compliance to the award by NTC. First, HP was promoted to Senior Rates Officer on 06/03/06 with effect from 01/02/06 with the salary of $14,044 per annum in Admin 2 as confirmed by the promotion letter from the Town Clerk dated 06/03/06. The promotion was in conformity with the AT findings that 'the promotion was more than just redesignation of position title. There were substantive additional responsibilities placed on HP which indicated that he had in fact been promoted..."

14] The AT in its findings concluded that HP was promoted from Rates Officer to Senior Rates Officer. That promotion imposed additional responsibilities on HP and required him to assume a management role. As a result HP was entitled to be moved to the next salary range being NT 03 or Admin 1. That did not happen as HP was given an increment on the existing or same salary scale. This is where AT made the distinction that ..." an incremental increase within a particular salary range or scale is usually associated with an employee performing the same tasks to a satisfactory level over a certain period of time or performing tasks to a predetermined target. On the other hand a movement up to the next scale or range is usually associated with a promotion, as a result of a job evaluation exercise or as a result of a restructure.

15] Restricted by the terms of reference of the dispute, AT finds that the employer's decision to award HP an incremental increase within his existing salary scale or range upon his promotion to Senior Rates Officer was unjust and inconsistent and the employer is required to review his salary structure as a result of his promotion.

16] NTC has submitted that the review of salary structures have been carried out and suggested that any backdating of salary would not be any earlier than 11/05/07 the date on which he was given job description and responsibilities for the position of Senior Rates Officer.

17] What NTC seems to be missing is that a decision has been made; NTC did not appeal it, but rather constructed its own version of what the Award means. Consequently, as the Tribunal cannot make any new findings of facts, it is compelled to allow the Motion.

Decision

The Notice of Motion dated 24th March 2010 is granted in terms of (a) and (b) and there are no orders as to costs.

DATED at Suva this 13th day of May, 2011

Sainivalati Kuruduadua
Chief Tribunal