Kumar v Land Transport Authority [2012] FJET 59; ERT Misc 12.2010 (9 September 2012)

IN THE EMPLOYMENT RELATIONS
TRIBUNAL AT LAUTOKA

ERT Misc. Application No. 12 of 2010

BETWEEN:

MR. AMOL KUMAR
GRIEVOR

AND:

LAND TRANSPORT AUTHORITY
EMPLOYER

Appearances:
Mr. D. Nair for the Grievor
Ms. R. May for the Employer

DETERMINATION OF THE TRIBUNAL

The Employment Relations Problem

1] The grievor Mr. Amol Kumar was terminated by the Land Transport Authority the employer on 2nd February, 2010 and he is claiming unjust and unfair termination as he was denied the due process contained in clause 8.2 of the Collective Agreement, that there was procedural impropriety in the decision making process and that the decision of the employer was discriminatory. The grievor is also asking for reinstatement.

References
2] In this proceeding:
- Mr. Amol Kumar shall be referred to as ("AK")
- The Land Transport Authority shall be referred to as ("LTA")

The Evidence

3] At the hearing, the LTA did not produce any witness and as such AK's evidence was unchallenged. At the close of the hearing on 26th September, 2012 the parties were given 14 days to make their closing submissions due on 11th October, 2012. The LTA did not submit its closing submission despite the fact that the Tribunal allowed both parties a further 21 days.
4] AK in his evidence told the Tribunal that he was employed as an enforcement support officer based in Lautoka from 14th February, 2005 to 1st February, 2010. On 17th June, 2012 he was issued a memorandum with the following allegations:

a. It is alleged that you have acted dishonestly and without integrity contrary to Section 8.1.1 and 8.1.12 of the Collective Agreement, when on or about 23rd April 2009 the traffic offence records for client Osea Goneva Sausau on the Authority's RANDL system were amended by you and one Kritnesh Kumar (IT Officer, Lautoka) using password and login details of one Paulini Ranadi (Authorised Officer, Lautoka).

b. It is alleged that you have acted without care or diligence in the course of your employment contrary to Section 8.1.2 of the Collective Agreement, when on or about 23rd April 2009 the traffic offence records for client Osea Goneva Sausau on the Authority's RANDL system were amended by you and one Kritnesh Kumar (IT Officer, Lautoka) using password and login details of one Paulini Ranadi (Authorised Officer, Lautoka).

c. It is alleged that you have Improperly used Official Information, your Duties, Status, Power or Authority in order to gain or seek to gain a Benefit or Advantage for yourself or anyone else contrary to Section 8.1.10 of the Collective Agreement, when on or about 23rd April 2009 the traffic offence records for client Osea Goneva Sausau on the Authority's RANDL system were amended by you and one Kritnesh Kumar (IT Officer, Lautoka) using password and login details of one Paulini Ranadi (Authorised Officer, Lautoka). You are hereby invited to reply to this allegation and give an explanation and this should be with my office on or before Wednesday 24th June 2009.

5] AK submitted his reply the same day in a memorandum stipulating the following - "The allegations labeled against me are completely FALSE, I have no knowledge of the transaction. There should be thorough investigation with a view to bring the offender or offenders to justice." On 30th June, 2009 AK was suspended with half a salary and the reasons stated were the allegations of breach of code of conduct and his subsequent reply. He was also advised not to enter any LTA premises during the course of the investigation. On the RANDL system, AK explained that it can only be viewed like one can see the information but one cannot amend it. He also denied that he used Ms. Paulini Wasenuku's password as he had a password himself and did not share it with anyone.

6] AK later told the Tribunal that he was terminated from employment by a letter from the Chief Executive Officer dated 1st February, 2010 to be effective from 2nd February 2010. The letter reads as follows –

"You are hereby informed that effective from the 2nd of February, 2010 your employment with the LTA is hereby terminated pursuant to clause 8.2.7 (iv) of the Collective Agreement and section 33 (1)(b) of the Employment Relations Promulgation 2007.

You have been summarily dismissed where in the course of the investigation both by the LTA and the Special Investigating team within the Ministry of Works, Transport & Public Utilities, you are dismissed for the following reasons:

1. For defrauding the Authority by illegally updating and changing the status and information in the Randal system;

2. For behaving dishonestly and without integrity in the course of your employment by updating and changing the status and information in the Randl system; and

3. By making improper use of your duties, status, power and authority to seek to gain a benefit from a customer.

7] AK confirmed that he was not given any report of the investigation that led to his dismissal and he was also denied the due process although under cross examination he agreed that the LTA gave him an opportunity to respond to the allegations that led to his suspension. AK added that whilst he was on suspension, an investigation report was prepared by the Special Investigation and Disciplinary Unit of the Ministry of Works, Transport and Public Utilities and the LTA. Upon considering the contents of the investigation report, the LTA terminated his employment without giving him an opportunity to be heard.

Analysis and Decision

8] According to the termination letter dated 1st February, 2010, AK was terminated both under section 8.2.7 of the Memorandum of Agreement (MOA) and section 33 (1) (b) of the Employment Relations Promulgation 2007. These provisions do not complement each other and are at opposing ends of the concept of natural justice. The Collective Agreement provisions provides the following –

If the charge is admitted by the employee concerned, or after considering the report relating to the charge and any reply together with the report of the inquiry, if necessary, the Authority is satisfied as to the truth of the charge, it may after taking into account the service record of the employee, impose one of the following penalties:

i] Caution and reprimand the employee in writing;

ii] Impose a penalty up to a sum not exceeding a fortnight's salary;

iii] Reduce the employee's salary with a consequent reduction in the employee's grading;

iv] Dismiss the employee

Section 33- (1)(b) of the Employment Relations Promulgation 2007 deals with summary dismissal and provides the following –

33 – (1) No employer may dismiss a worker without notice except in the following circumstances-

(b) for willful disobedience to lawful orders given by the employer.

9] The Tribunal submits that the LTA cannot use section 33 (1) (b) of the Employment Relations Promulgation to terminate AK as he is covered by the Collective Agreement as a union member. In that regard the termination was unjustified and the Tribunal refers to the audi alteram partem rule – "hear him out" or the right to be heard as echoed by Lord Denning in Kanda v. Government of Malaya [1962] UKPC 2; [1962] AC 322 followed in A-G v. Ryan [1980] AC 718. His Lordship said "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them."

10] The Tribunal agrees that the employees at LTA are subjected to either the MOA or the Partnership Agreement (PA). Pursuant to Article 8.2.1 of the MOA between the LTA and the 3 Trade Unions namely the Fiji Public Service Association, Viti National Union of Taukei Workers and Public Employees Union, the LTA's right to discipline its employees is not absolute, as in Article 1 of the MOA, the LTA as the employer in exercising its rights under the Article "shall observe all the provisions of the Agreement and shall not take any action which shall be in breach thereof."

11] The Tribunal finds that that the LTA did not comply with Article 8.2.1 of the MOA as it did not serve the original documents of the charges to AK. That is the window provision in the Disciplinary Procedures and since it was not adhered to, the whole process failed.

12] The Tribunal further establishes under Article 8.2.4. of the MOA the task of establishing the truth of the charges and to find facts shift to an independent body of inquiry presided solely by an independent person appointed in consultation with the union. The LTA under Article 8.2.4 is obliged to request for an independent inquiry to establish the truth of the charge and to find facts. Finding the truth of the charge after its denial by an employee was not the role of the LTA under Article 8.2.4. This is what the Chief Executive Officer attempted to portray in the termination letter dated 1st February, 2010. The LTA alone cannot be running the process of establishing the truth and fact finding for the obvious reason that it would be a breach of natural justice that the investigator also becomes the Judge and secondly, it would usurp the purpose and role of the independent inquiry. The LTA cannot usurp the requirements of clause 8.2.4 and acting in breach of it. It cannot find guilt against an employee premised solely on the unchallenged statements of witnesses or complainants. Witness statements cannot be accepted on face value as the truth, as its truthfulness or otherwise can only be determined by the scrutiny of its maker.

13] The Employment Relations Promulgation 2007 provides for 2 categories of dismissal: unjustified and unfair dismissals. There is no statutory or common law definitions of "unjustifiable and unfair dismissals" and in a recent decision the 2 terms were defined as follows:

"For a dismissal to be justified, it would need to be capable of demonstration that it was just, right or valid; capable of being defended with good reasoning. A decision would be unfair, if it was harsh, unjust or unreasonable." [1]

14] The test for justification which applies to claims of unjustifiable dismissal 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.

All the circumstances at the time the dismissal occurred would include the type, resource and size of the employer. The LTA is a major employer in the country and the AK can be classified as your usual LTA employees on the frontline; the road or in the office. The duty of good faith extends to the LTA and at least required it to hear out AK before making the decision to terminate him.

15] This case illustrates that the circumstances of a worker environment are a factor to be considered. This means that the standards of what is fair and reasonable may be varied according to the circumstances and a fair and reasonable employer may not necessarily be totally impartial or neutral. Of necessity employers like the LTA bring to their decisions the values, culture and expectations of their specific work place. They must weigh the impact of the behavior of an employee under investigation on other employees and the work environment generally. However, this does not give the LTA unbridled license to impose its personal prejudices or values on AK. The concept of fairness implies an open – minded approach and reasonableness implies rationality.

16] A dismissal following poor or unfair procedures will normally result in the finding that the dismissal was unjustified. 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."

17] Another important case on the disciplinary process is the NZ Food Processing IUOW v Unilever New Zealand Ltd (1990) 1 NZLR 35 the Court also said that.. "the employer's conduct of the disciplinary processes is not to be put under a microscope and subjected to pedantic scrutiny."

This means that minor procedural inadequacies should not render a disciplinary action unjustified but in this case the Tribunal found that AK was confronted with the allegations, denied the formal disciplinary procedure in the Memorandum of Agreement and served the termination letter. That would not qualify as a minor procedural inadequacy.

18] From the evidence the Tribunal is satisfied that the LTA did not make any attempt to accord AK all the fair procedures as stipulated in the leading Unilever case which 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.
  

Whether AK was unfairly terminated?

19] In Carpenters Fiji Limited v. Isoa Latianara [2011] FJET3; ERCA Wati J. explained what constitutes fairness to be the following:

"that it is the manner of treating the employee in carrying out the dismissal that must be considered. The employer's action must be assessed to ascertain whether the employee was treated with fairness, respect and dignity in the carrying out of the dismissal."

20] In Central Manufacturing v. Kant [2003] FJSC5 the Supreme Court held the following:

"there is an implied term in the modern contract of employment that requires an employer to deal fairly with an employee, even in the context of dismissal."

Specifically, the Court held that while the common law implication,

"...plainly does not extend to a requirement that reasons be given, or that a hearing be afforded at least where the employer has the right to dismiss without cause and to make a payment in lieu of notice. It does extend, however, to treating the employee fairly, and with appropriate respect and dignity, in carrying out the dismissal."

21] From the evidence, AK was at his home waiting for the investigation report when he was served with the termination letter. The Tribunal has taken into consideration the waiting period of about 7 months on half pay and waiting for a report that did not come. AK was waiting for that report to clear his name but he did not get the opportunity. That was humiliating, not fair and was void of any form of dignity.

Determination of the Tribunal

21] The Tribunal in analyzing the evidence and arguments has come to the conclusion that AK was unjustifiably and unfairly terminated in that the LTA did not follow fair procedures especially the right to be heard. The procedures are in the Memorandum of Agreement and the Tribunal cannot see the reason why LTA did not use them as the right to be heard in person is very important as it gives an opportunity to reply especially when a person's livelihood is under threat of being adversely affected.

Remedies

22] [i] Under section 230 (1)(a) of the Employment Relations Promulgation 2007, the Tribunal Orders the immediate reinstatement of Amol Kumar to his former position or another position no less advantageous to him; and

[ii] Under section 230 (1)(b) of the Employment Relations Promulgation 2007, the Tribunal Orders the reimbursement to Amol Kumar of 2 years and 7 months wages lost as the result of the grievance. Amol Kumar was terminated on 2nd February, 2010 and the hearing on this case was held on 26th September, 2012; 2 years 7 months down the line.

DATED at Lautoka this 9th day of September, 2012

Sainivalati Kuruduadua
Chief Tribunal

---

^[1] Resident Magistrate Andrew J. See in Miliakere Nale vs. Carpenters Fiji Limited T/A Morris Hedstrom (ERG no. 173 0f 2011) and I agree entirely with these definitions; the practical and ordinary meanings of the words.