Shameem v Air Terminal Services [2012] FJET 57; ERT Grievance 09.2008 (8 August 2012)

IN THE EMPLOYMENT
TRIBUNAL AT LAUTOKA

ERT Grievance No. 9 of 2008

BETWEEN:

MOHAMMED SHAMEEM
GRIEVOR

AND:

AIR TERMINAL SERVICES
EMPLOYER

Appearances:
MC Lawyers – for the Grievor
Neel Shivam Lawyers – for the Employer

DETERMINATION OF THE TRIBUNAL

The Employment Relations Problem

1] The claim for unjustified and unfair dismissal on 12th August 2004 by Mohammed Shameem against his employer Air Terminal Services and he is asking the Tribunal for reinstatement, reimbursement of lost wages and compensation.

References

2] In this proceeding:

- the grievor Mohammed Shameem shall be referred to as ("MS")

- the employer Air Terminal Services shall be referred to as ("ATS")

- Varanisese Derenalagi the Training Controller for ATS shall be referred to as ("VD")

Background and Evidence

3] ATS sees MS contention to be that he was not on approved leave immediately prior to 27th July 2004 and as such ATS had miscalculated the 14 days consecutive absence to apply Article 2F of the Agreement. Article 2F says the following:

"An employee who fails to resume work within 14 days after completion of an approved leave shall be deemed to have resigned from the Company's services."

4] MS was alleged to be on approved sick leave from 8th July to 26th July 2004 and he was supposed to report for duties on 27th July 2004 but he failed to turn up for work. MS terms and conditions of employment were governed by ATS/FASA Permanent Part Time Agreement dated 22nd September 1997. As the worker failed to report to work from 27th July 2004, ATS had resolved to invoke Article 2F of the Agreement to terminate MS on the basis that he was absent for 14 consecutive days after his leave and was deemed to have resigned from his employment. MS also had previous performance issues and had exceeded his sick leave entitlements.

5] VD is the Training Controller for ATS and also assists on human resources matters. She has been with ATS for more than 15 years and in her evidence she told the Tribunal that she knows MS as the Permanent Part Time Passenger Assistant Agent who went on leave and did not come back. She stated that MS started with ATS on 23rd February 1998 and was confirmed on 15th September 1998 and from the documents exchanged between MS and the Human Resources Section of ATS gathers that MS was granted sick leave from 8th July to 26th July 2004 and this was recorded on the worker's Leave Detail Report. MS was required to report for work from 27th July 2004 but failed to do so and claimed that Sundar his supervisor granted him sick leave from 27th July to 11th August 2004.

6] VD told the Tribunal that there were no records with the ATS that MS was granted leave by Sundar for the period from 27th July to 11th August 2004. She said that it was usually the Manager Passenger Services who approves leave and in his absence, the Assistant Manager. In MS's case neither had endorsed any approvals.

7] As to the nature of MS job description, VD explained that MS was required to lead passengers to and from the aircraft, meet those arriving and look after those needing special attention like sick and elderly passengers with the provision of wheelchairs and other assistance. VD added that MS performance was not up to par as he frequently committed errors due to lack of customer skills like when he failed to board a passenger on 12th March 2000, and abruptly dealing with another one.

8] When MS failed to board a passenger, he was called into the office and told to write an incident report after which he was counselled about his performance. In the incident report MS agreed that he committed an error and forgot to de-board the passenger. VD explained that after the incident report was received by ATS, Ram Sundar the Assistant Manager Passenger Services wrote to MS on 16th March 2000 along the following lines:

"During our discussion and also as per your report, you admitted it was an error. You agreed that you boarded the above named passenger in error and forgot to de-board when you knew that the passenger has not passed through the gate. This resulted in the passenger being left behind. The airline is very concerned with such incidents especially when the passenger's bag was still on board. You are aware of the implications and repercussions of such errors, which breach security and safety regulations.

You are reminded that it is an important aspect of your duties as per your classification and errors of this nature will not be condoned in future. Had you been a bit more careful, this error would not have occurred.

Any future repetition will leave us no option but to take a harsher stand. This correspondence therefore serves as a warning."

9] VD continuing with her evidence in chief stated that the letter by Mr. Sundar did not change or improve MS's performance as he subsequently engaged himself in error ridden activities. On 20th September 2000, MS annual increment for period 24th May 1999 to 23rd May 2000 was withheld or various reasons including lack of skills on customer service, job output, job knowledge and lack of initiatives and responsibility. In addition to that, MS sat for the Dangerous Goods Examination but could not achieve the 80% mandatory pass mark as he scored only 65%. He was then given reading manuals on the subject and had to re-sit the examination on Friday, 17th November 2000.

10] VD then told the Tribunal that despite all these, MS trail of follies continued as on 29th January 2001 he mistakenly identified a passenger for a flight to Auckland. That was a critical mistake as the core requirement of his position is to correctly identify the passengers for boarding and any mistake would lead to delay and disruption in the flight. MS again followed the process of filing an incident report and given time to discuss with his Assistant Manager Mr. Sundar who warned him to exercise more care and diligence in his work and after this incident MS was given further training by the Training Standard Officer for passenger services.

11] Again on 13th April 2001, MS was involved in another incident with passenger Naicker over the payment of excess baggage. As usual he was asked to write an incident report and counselled by Mr. Sundar the Assistant Manager who now warned him to bring about dramatic changes to his customer service delivery skills so that such complaints can be eliminated in future. VD stressed that MS performance nosedived and ATS asked him to explain why he was committing so many errors and the Manager Passenger Services Mr. Mohammed Yunus wrote to him to explain himself.

12] MS was terminated on 12th August 2004 and according to VD the reason was that he failed to report back to duty within 14 days from the expiry of leave. VD confirmed that MS leave was approved in principle from 8th July to 26th July 2004 for medical reasons; for him to get medical attention. According to Dr. Deo Narayan the Consultant Physician at Lautoka Hospital in his letter to ATS dated 2nd April 2004, confirmed that MS was recently diagnosed with diabetes mellitus. His blood sugars are still uncontrolled and he is very symptomatic.

13] VD told the Tribunal that MS was supposed to report to work after leave on 27th July 2004 but he did not do so and the Manager Passenger Services then Mr. Filipe Tuisawau notified the Chief Executive Officer of ATS in writing on 2nd August 2004. A similar letter was then forwarded to the Chief Executive Officer from Mr. Tuisawau on 10th August 2004 advising that MS has not reported to work since 8th July as he called in sick from 8th to 26th of July 2004 and had not filled the P3 Form. Apart from that Mr. Tuisawau advised the Chief Executive Officer that MS did not show up for work from 27th July to 10th August 2004 or called the office to advise of his whereabouts. In that regard Ms. Lynette Radrodro the Temporary Switchboard Operator referred to the calls she had made on 28th November 2008 to mobile phone numbers 9951358 and 9930903 belonging to MS but both were diverted. Ms. Radrodro noted that she called those numbers every 15 to 20 minutes but both were diverted.

14] VD stated to the Tribunal that Mr. Tuisawau recommended to the CEO to apply section 2F of the Collective Agreement which says that if an employee fails to resume work within 14 days after completion of an approved leave, the employee is deemed to have resigned from the company's services. VD continued with her evidence pointing out that MS worked on 22nd July 2004 when he was supposed to be on leave and that he was on shift swap on 9th July 2004. If MS worked on any day it would be all right and if he did not work, it would be regarded as sick leave and that would be confirmed by the present or absent Form but in the case of MS he did not complete any Form.

15] When asked why ATS did not initiate a disciplinary hearing in respect of section 2F of the Collective Agreement, VD answered that it was the company's choice to directly invoke section 2F. The Union was not consulted but a copy of the termination letter was sent to it as MS was a Union member during the termination. The Union did not make any response to the termination. MS finalised his clearance forms on 11th April 2005.

16] Under cross examination VD agreed that she had not in any way dealt directly with MS apart from her signing the training clearance Form and that she did not play a part in the disciplinary or dismissal process. All the evidence she had given in evidence in chief were from file records.

17] VD agreed that the termination letter dated 12th August 2004 was served to MS on 12th August 2004 through mail and he was supposed to pick it up. VD also agreed that MS was not given an opportunity to explain the reasons why he should not be terminated.

18] As to the records of the calls made to MS mobile phones, VD was referred to the records made by one Ms. Lynette Radrodro dated 28th November 2008 some 4 years after the event. VD explained that the calls would have been made on the same day of termination which was 12th August 2004. She however agreed that records were made on 28th November 2008, some 4 years after the event.

19] Still on phone call records, VD answered that from 8th July to 26th July, MS was absent from work and there is no record of the calls made to him although the Manager and Assistant Manager maintained that they made efforts to call MS. Also for the same period, VD insisted that there were no P3 Forms filled.

20] That brought up the issue of completing the P3 Forms and VD was referred to an annexure from the employer's records concerning MS Leave Detail Report as she had earlier agreed that there were no completed P3 Forms. She was referred to the period from 23rd April 1998 to 1st August 2004 and she agreed that the P3 Forms were filled late and the employer had accepted it as recorded.

21] Going back to the termination letter, VD was asked how the 14 days were compiled like between which dates as the termination letter dated 12th August 2004 did not specify the actual dates. She agreed that the dates were not given.

22] VD had said in her evidence in chief that MS was given approved leave verbally and when questioned as to where was the approval to be absent from work, she referred to the occasion when MS called on the Assistant Manager showing his medical report from Dr. Uday Narayan of Lautoka Hospital. The leave from 8th July to 26th July 2004 was approved in principle, there was no Form and there is no particular written record as MS had to come in and complete the P3 Form according to VD.

23] VD told the Tribunal that ATS through the medical report dated 2nd April 2004 knew that MS is a diabetic patient. This was not known when MS joined ATS, as all employees had to go through medical examination. VD agreed that the employer has an obligation to MS in view of his diabetic condition and towards that end had scheduled appointments for MS for further medical checkups but there was no treatment.

24] VD was then asked whether she knew Article 23D of the Collective Agreement and when she answered in the negative, she was provided with an extract of the provision which she read as follows:

"An employee who consistently absents himself from work due to sickness may be required by the Company to submit himself for further medical examination to determine his fitness for the work engaged in."

25] VD agreed after reading Article 2D that the employer may send an employee for further medical checkups or medical treatment for the purpose of fitness for work. VD explained further that in some cases employees come up and request for medical treatment or checkups when they know they are suffering from a condition. As for MS, he produced his medical report but he did not request for medical treatment or checkups. VD also confirmed that ATS was aware of MS diabetic condition.

26] Still under cross examination, VD was asked if an employee is on approved sick leave for 14 days, why would he turn up for work, what would be the reason for turning up for work? That question was asked in the light of MS working on 22nd July, marked as on day off on 23rd July and marked as absent on 27th July 2004. VD answered that sick leave was approved in principle but the Forms were not filled.

27] Counsel for MS told VD that there was no approved leave, there was nothing in writing and MS had worked in that period, had a day off and had been absent according to the employer's record, so he was not on approved leave. If there was no approved leave, it would be unfair for him to be terminated without warning and notice. VD replied that based on the other incidents, MS could have been warned first.

28] VD agreed that the employer's record would show that MS worked on 22nd July, day off on 23rd July and absent on 27th July, 2004. She also agreed that the Manager Passenger Services, Mr. Filipe Tuisawau had written to the CEO on 2nd August 2004 about the no show and excessive sick leave of MS and recommended immediate termination without delay under Article 2 (c) (iv) of the Collective Agreement. The CEO replied that the only manner at which he could deal with MS is for Mr. Tuisawau to recommend disciplinary enquiry and detail the charges. The CEO in that letter of reply stated that it was highly unlikely for the Union to agree to terminate MS without a disciplinary inquiry. VD confirmed that there was no disciplinary inquiry into MS and he was terminated after approval was given by the CEO on 10th August 2004.

29] On re-examination VD explained that if an employee was absent and submitted the P3 Form late on resumption of duty it does not mean that his period of absence is approved or excused. It will depend on his sick leave entitlement; if he has leave left then he gets paid, otherwise he will be marked down as being on sick leave without pay. She continued that during the period 8th to 26th July 2004, MS had exhausted his sick leave provision as a Permanent Part Time Passenger Agent. As to whether MS was on any sort of approved leave from 27th July onwards, VD confirmed that he was not and that from 26th July, he was absent for 16 consecutive days without informing the company and that was the reason of his termination by the CEO.

30] Mr. Lasarusa Luma opened the grievor's evidence by stating that he had worked with MS for some 5 years doing the same type of work; that of a Passenger Assistant Agent. He stated that on 9th of July 2004 he did a "shift swap" with MS between 9:00 to 15:00 hours as MS was sick and could not come to work. This is an accepted practice at ATS and MS would pay him cash. He added that everyone at ATS knew of MS medical condition and how it had affected his work.

31] Under cross examination, Mr. Luma said that the required notice for a shift swap is a minimum of 6 hours before it is effected and in this case MS filled the relevant form and he just signed it. The company would not know as MS would be at home sick but it would give approval based on the time sheet.

32] Mr. Vilikesa Naulumatua is the National Secretary of the Federated Airline Staff Association and he confirmed that MS was a member of the Association in 2004. When MS was terminated, there was no communication with the Association and it only came to know in 2007 contrary to the understanding between the parties that the Association be given full disclosures before any termination was effected. The action by ATS to activate Article 2F of the Collective Agreement in terminating MS was done unilaterally and if the Association had known MS would not have been terminated.

33] Mr. Naulumatua continued with his evidence that if the Association together with ATS had exercised due diligence MS could not have been terminated for sick leave. Mr. Naulumatua told the Tribunal that personally, he did not think it was fair to terminate MS as due to his medical condition; he was going through something difficult in his life.

34] Under cross examination, Mr. Naulumatua confirmed that the termination letter was sent to him in 2007 and that ATS used section 2F which deemed him to have resigned for being absent for 16 consecutive days. Mr. Naulumatua further told the Tribunal that the AFL was not properly informed that MS was an inpatient at the Rakiraki Hospital.

35] MS in his evidence confirmed that he was terminated on 12th August 2004 when the ATS invoked Article 2F of the Collective Agreement and also confirmed the practice that the P3 Form is completed on the first day of resumption of duty. He also told the Tribunal that although ATS knows about his condition, it did not send him to any Doctor for treatment. MS said that he explained his condition to Mr. Patrick Young and Mr. Ram Sundar his immediate supervisor and they suggested he take some time off. MS further told the Tribunal that he spent 2 weeks in Rakiraki and that was where his sugar was controlled.

36] MS explained to the Tribunal that he had worked until 1st August 2004 and on 2nd August 2004, Mr. Sundar as his immediate supervisor suggested that if his situation did not improve, to take some leave without pay. According to MS, that was the verbal approval for him to take official leave from 2nd to 16th August, 2004 and he was still on leave when the termination letter was served on 14th August 2004. MS complained that the 14 days should have run from 16th August 2004 as he was still on approved leave.

37] On the action by ATS, MS told the Tribunal that he had expected this employer to institute disciplinary proceedings against him or otherwise constitute a Medical Board as the usual practices in such a situation with the employees at ATS, but ATS chose to invoke Article 2F of the Collective Agreement to terminate him.

38] MS reiterated that his letter of termination was invalid as it did not comply with Article 2F and that in July he was at work, not on leave and he was either absent or sick during his shifts. MS said that he is still unemployed and now dependant on the wife's salary. As for remedies, he is asking for reinstatement without loss of benefits.

39] During cross examination, MS insisted that the practice at ATS is for the P3 Form to be filled on the first day of resumption of duty and in that regard he did not fill the P3 Form on 2nd August 2004, as he was not sure of how much time he would need to be on sick leave for. MS added that on 2nd April 2004m a Doctor Narayan diagnosed him with Diabetic Type 1 and Uncontrolled Sugar.

40] MS confirmed that he took sick leave from 2nd to 14th August because of his medical condition and that nobody from ATS made any attempts to contact him. MS further reported to the Tribunal that when he was given his termination letter, he immediately went to see the National Secretary of the Association who advised him that he was still waiting for the advice from ATS.

41] On re-examination, MS stated that all his workmates know where he lived, so there was no excuse of not locating him. The Assistant National Secretary at that time supported his case but could not do anything as there was no formal communication from the employer.

Analysis and Conclusion

42] There are both legal and factual issues to be determined in this case. MS the aggrieved employee is claiming that he could not be terminated under Article 2F because he was not on approved leave from 8th to 26th July 2004. MS argument is that he was working during that period as shown by the shift swap on 9th July, the shift he worked on 22nd July, 2004 and being marked as absent on 27th July, 2004. Since Article 2F provides for an employee to fail to resume work within 14 days after completion of an approved leave to be deemed to have resigned from the company's service, this Article 2F cannot apply to him.

43] ATS, the employer claims that MS was on approved leave from 8th to 26th July 2004 and failed to resume work on 27th July 2004. This was raised in cross examination and VD explained that the sick leave was approved in principle and if MS worked he would be paid, otherwise it would be still sick leave without pay which means that he was not on approved leave and that from 26th July 2004 he was absent for 16 consecutive days and that was the reason for the termination. The question of whether or not MS was on approved leave is settled by the letter dated 2nd August 2004 by the Manager Passenger Services, Mr. Filipe Tuisawau to the CEO of ATS that MS has not reported for work since 8th July 2004 as he called in sick from 8th to 26th July 2004 and had not filled the P3 Form.

44] To assess whether the termination was justified, it is necessary to consider MS medical and work history, the purported approved leave on 8th to 26th July 2004, the procedure and substance of the investigation, the circumstance of the decision to terminate and ATS adherence to health and safety requirements.

45] MS medical history with this employer can be traced back to April 2004 when Dr. Narayan made the diagnosis of diabetes mellitus and uncontrolled sugar, and the work history is well known for the number of disciplinary measures taken against MS for performance related issues all pre 2004. MS condition after April 2004 became worse, he exceeded his sick leave entitlement and long absences became frequent and this ran from 8th July up to his termination.

46] As outlined in paragraph 43, MS was not on approved leave and in that connection, the Tribunal agrees with him that Article 2F could not have been applied. In fact, the application of Article 2F was the second option as the Manager Passenger Services had initially recommended Article 2 (c) (iv) of the Collective Agreement for immediate termination without delay. The relevant Article 2 (c) (iv) provides for the following:

"The Company may initiate moves to terminate the services of an employee through disciplinary inquiry under the following circumstances.

(iv) For continual absence from work without the permission of the Company and without other reasonable excuse."

47] The CEO did not agree with that as he could not see the Association agreeing for immediate termination and in that regard suggested a Disciplinary Inquiry. VD in evidence confirmed that there was no disciplinary hearing as again Manager Passenger Services recommended invoking Article 2F as in the letter dated 10th August 2004, he wrote that MS was no longer interested in working there and suggested that he had deserted his post. The CEO then agreed and MS was terminated on 12th August 2004.

48] From the evidence, it is apparent that ATS as the employer has breached its duty of care towards MS. The primary responsibility is always with the employer and interestingly enough the parties' Collective Agreement provides for a medical board to assess the suitability or fitness in lay man's term of MS for continuing employment. That did not happen either and from the evidence moves were always under way to fast exit MS from employment.

49] The Tribunal from the evidence finds that the employer did not take concrete measures to improve MS by putting him through a performance management process. Towards that end, the Tribunal refers to the New Zealand Employment Court decision in Morris v Christchurch International Airport Limited [2004] NZEmpC 58; [2004] 1 ERNZ 336 which is illustrative of the distinction between the acts that should be dealt with as part of an ongoing performance management process, and single acts of incompetence or negligence that would justify dismissal. In Morris, an employee who was subject to a performance management process was dismissed as the result of a single act that occurred one month into a review period intended to take up to six months. Her dismissal was held to be unjustifiable.

50] The Tribunal has brought up the case of Morris for the good of the industry as it believes that all the employees in the civil aviation industry are important in that they have to meet certain guidelines already agreed to between the ATS, the travelling public and the airlines.

51] MS would be a perfect candidate for an ongoing management process just by looking at the series of warnings given to him; from poor attendance, abusive language and poor performance. Notwithstanding that, employers are reminded that there are a number of procedural steps that must be taken before an employer reaches the point where it can dismiss for poor performance. These steps include:

• Informing the employees of the dissatisfaction with their performances requiring them to achieve a higher standard;
  
• Providing information in a readily comprehensible form; and
  
• Allowing reasonable time for the attainment of those standards.
  

Exhausting the above steps, the parties can then proceed through the grievance procedure which in the instant case did not happen.

52] Again, the case of Morris is also authority for the proposition that if a performance management process is started, it must be seen through. Where a period of improvement has been given, the full time must be given unless the process is interrupted by a sufficiently serious incident of incompetence, negligence or other misconduct. Less serious acts of non-performance during the review period do not justify dismissal but can be taken into account when the employer comes to make their final decision. This shows the dual benefits of having an ongoing management process and where the employer can enjoy a lot of leeway in exercising its termination rights if an employee does not perform within a specified period of time.

53] The Tribunal in determining the justifiability of the termination will look at it from an objective basis; by considering whether the employer's actions, and how the employer acted, were what a fair and reasonable employer would have done in all the circumstances at the time the dismissal or action occurred.

54] The ATS did not accord to him the due process and the hours of work and periods of sick leave and his entitlements were not properly explained to him. Like he was working and getting paid when he was supposed to be on leave. In that regard, ATS did not act like a fair and reasonable employer as in the circumstances at the time of termination, ATS with all its resources had a contractual obligation to MS, had professionals running its human resources department, had policies to deal with management of its employees' health issues and disciplinary processes. This includes ATS ability to terminate for incapacity, otherwise known as "medical retirement."

Decision

55] From the analysis, the Tribunal determines that MS was unjustifiably dismissed and therefore Orders the employer, Air Terminal Services to do the following:

i] Under section 230 (1) (a) of the Employment Relations Promulgation 2007 (ERP), reinstate Mohammed Shameem to former position;

ii] Under section 230 (1) (b) of the ERP pay one year's salary as part of lost salary to Mohammed Shameem as the result of this grievance bearing in mind that this case was only heard last year in June; and

iii] Under section 230 (1) (c) pay two (2) years' salary to Mohammed Shameem as compensation for humiliation, loss of dignity, and injury to his feelings. ATS is an employer that preaches and practices worker participation in management resulting in this awareness of ownership and creating a big village of workers who watch each other. So one can imagine the humiliation of being terminated from ATS.

DATED at Suva this 8th day of August 2012

Sainivalati Kuruduadua

Chief Tribunal