Naitau v Fiji Sugar Corporation Ltd (FSC) [2019] FJET 31; ERT GR 37 of 2013 (23 July 2019)

Decision

Title of Matter:	Samuela Naitau v Fiji Sugar Corporation Limited Ltd (FSC)
Section:	Section 211 (1)(k)Employment Relations Act 2007
Subject:	Adjudication of Grievance Arising Out of Dismissal
Matter Number:	ERT Grievance No 37 of 2013
Appearances:	Mr A Ciobale, National Union of Workers, for the Grievor Ms G Fatima, for the Employer
Date of Hearing:	5 February 2018
Before:	Mr Andrew J See, Resident Magistrate
Date of Decision:	23 July 2019

KEYWORDS: Dismissal arising out of employment; Section 211 Employment Relations Act 2007; Employee Theft, Indefinite Suspension by Employer; Failure to Assist With Workplace Investigation.

CASES CONSIDERED
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938)
State v Samuela Naitu (Criminal Case No 615 of 2008) Lautoka Magistrates Court 29 June 2012.

Background

[1] This is a grievance that was referred to the Tribunal in accordance with Section 194(5) of the Employment Relations Act 2007, on 7 December 2012. It is a matter that was called on before the Chief Tribunal on 1 February 2013, 8 March 2013, 10 April 2013 and 22 July 2013 and thereafter was allocated to Legal Tribunal Samujh on 12 September 2013. It is unclear why nothing transpired for nearly 4 years from that time, although the matter was brought on for mention before my sister Prakash RM on 12 September 2017 at which time the status of the file was reviewed. Ultimately the matter was called on before this Tribunal on 5 February 2018 and for reasons that are unclear, the file remained dormant in the registry of the Tribunal for a further 12 months.

The Grievance

[2] The Employer claims that the Grievor was terminated in his employment by letter dated 19 December 2008, for the theft and sale of fuel, the property of the FSC^[1]. The Union on the other hand claims that the Grievor had been suspended in his employment pending the criminal complaint being processed in the Lautoka Magistrates Court. The Union argument, was that on the basis that the charge against the Grievor was dismissed and that he was acquitted, that it follows that he should have been reinstated in his employment^[2].

[3] The Tribunal has read the Report on Investigation of Chemical and Diesel Fuel Theft that was prepared by a three member investigating team on 11 September 2008. It is noted within that report that, during the interview process that:-

• Shiuneel Sandeep Nair claims to have witnessed the Grievor pilfering fuel from the simplex at line 1 in the fuel yard.

[4] It is further noted that during the course of the investigation, that the Union had advised its members to not participate in any further interviews, presumably whilst the matters were the subject of criminal proceedings.

Criminal Proceedings Before the Lautoka Magistrates Court

[5] The decision by my brother Magistrate Dalituicama was handed down in Lautoka on 29 June 2012. In relation to the testimony of Shiuneel Sandeep Nair, his Worship stated:

The Court was informed that Shivneel Sandip Nair (sic) is the complainant. He had testified and reiterated throughout examination in chief that it was a Samuel and Joe who commited the offence, not the Accused. Prosecution submitted that ”(PW-1) saw some men from simplex filling up the diesel in the gallon and saw somebody took that gallon out of the gate and loading it in a van. (PW-1) stated he did not (see) accused person taking out anything but he mentioned the accused person was present at that time when the theft was being committed.” The evidence put before the Court is that the diesel was taken to a truck, not a van. It is further obvious from the submission by Prosecution that the complainant is telling the truth, and this is consistent with the Court’s observation of his demeanour reflecting courage, calmness under examination, confidence and being truthful. It is not sufficient and neither is it an element of the charge that the Accused was present at the time when theft was committed. Simply put, there is no direct evidence linking the accused to the offence he is alleged to have committed......... that on the Prosecution’s own evidence, the Accused did not commit the offence but a Sam and Joe.
There is serious doubt in the Prosecution case. The Court finds that the Accused did not commit the offence and therefore has no case to answer. The charge against the Accused is dismissed and Accused is acquitted accordingly.

The Hearing Before the Tribunal

[6] The Tribunal had been reluctant to see the hearing of a matter after nearly ten years and had attempted to convince the Union that this exercise, in seeking the vindication of the member, against a backdrop where very few key personnel remain, would be quite problematic. In any event, despite those concerns raised, the Grievor did want his day in court and for that reason, evidence was taken from two Employer witnesses and the Grievor himself.

Navendra Prasad

[7] Mr Navendra Prasad was at the time of hearing the Personnel and Administration Officer, FSC. At the time of the incident, Mr Prasad had been working as a Human Resource Officer at Labasa, so at best he could make available copies of the relevant remaining documents held by the Employer. Key documents in this regard, were the Investigation Report, the dismissal letter and the Union request seeking the reinstatement of the worker, following the dismissal of proceedings in the Lautoka Magistrates Court.

Amani Lum

[8] Mr Amani Lum was the Team Leader, Engineering and was part of the Investigation Team that considered the conduct of a group of workers who it had been alleged had stolen fuel the property of FSC. In his evidence, the Witness told the Tribunal that the investigation took some three weeks to conduct and that the police had become involved and charged various workers with theft of chemicals and theft and selling of diesel fuel, the property of FSC. The Witness told the Tribunal how the investigation team had interviewed the Grievor at the time and that he had been evasive and not receptive to the inquiry. Mr Lum stated that on the second day of wanting to interview Mr Naitau, that the Union had withdrawn their participation in the process and despite this, the General Manager was of the view that the investigation should continue. According to the Witness, five other employees were interviewed. The Team Leader said that the Grievor’s offsider at the time, had named Mr Naitau as being involved in the theft of the diesel fuel. It was said that he had been seen removing 2 gallons of fuel out of the simplex and filling a 20 litre container.

[9] During cross examination, Mr Ciobale challenged the Witness as to the claim that the Grievor had been evasive and in relation to the observation within the Investigation Report, that Mr Naitau had been “pretending he was deaf”, it was put to Mr Lum, that in fact the Grievor was partially deaf.

Samuela Naitau

[10] In his evidence, the Grievor gave a brief account of his recollection of events, claiming he had no knowledge of any theft, until the issue was raised with him at work the following day. The Grievor claimed never to have received the dismissal letter. The Witness said that he could not recall being interviewed by Mr Lum as part of the investigation team. When questioned by the Tribunal as to having being said to have received money from his offsider, that was understood to be a share of the distribution from the sale of fuel, the Grievor denied that claim.

Analysis of Issues

[11] In some ways it is immaterial whether the Employer had in effect given the Grievor the dismissal letter or simply suspended him, pending the outcome of the criminal proceedings. Of course, a suspension for four years, is unwieldy and unwise, however on occasions when decisions are first made, parties are unaware of the timelines that lie ahead. In the case where a period had extended beyond a reasonable time frame, brings into question whether or not the employment relationship continues and should also bring about a further review of the suitability of that approach.

[12] In any event, it is clear that the Assistant General Secretary of the Fiji Sugar and General Workers Union wrote to the Employer on 16 July 2012, urging that Mr Naitau be reinstated in his employment, some four years after the initial incident. At that time, the Union were seeking that the Grievor be compensated with four years pay.

[13] The Employer seems to have relied on the statement taken from Mr Shiuneel Sandeep (Tony) Nair, to implicate the Grievor in the conduct. Unfortunately for the Employer, the findings of the Magistrate in light of the evidence provided by Mr Nair, make clear that there is simply no evidence to support the allegation. Whilst there may be many questions that remain unanswered, for example, the question as to whether Mr Nair did provide the Grievor with $10.00 that was purportedly the proceeds from the sale of fuel to an outside party, that will not assist the matter too much further. It is also made the more difficult, when the Employer did not call Mr Nair to give evidence.

[14] The Employer acted on the information it had, when making its decision to remove the Grievor from the workplace. Whether it matters much, as to how that removal came about does not seem that important now. The Grievor claims that he never received a dismissal letter and that he was only suspended from duties, yet the Employer had produced a draft dismissal letter as evidence that a decision had been made. Either way, by the time the grievance was lodged with the Mediation Service, the employment relationship was at an end. It is simply an unworkable situation, to suggest that a worker can be suspended without pay for four or more years and the employment relationship continues. It would be more likely that such a situation would give rise to a claim of repudiation of contract. Either way, the Employer remains of the view today, that the Grievor had been involved in the theft of diesel fuel. Unfortunately there is no evidence to support that view.

[15] It may have been possible after much effort, to have traced the then ‘offsider’ Mr Nair, who it is claimed had earlier named Mr Naitau as being involved in the theft, but to what good. The Tribunal is of the view that whilst a much more comprehensive interrogation of the evidence would be required in order to make any precise determinations in this matter, there was clearly theft of FSC property at that time and the Grievor had been implicated. Had the Union sought to assist the Employer rather than withdraw its support to the investigation process, this matter would have been brought to an end a long time ago.

[16] It is understood that at the time of his dismissal, that the Worker had been employed at FSC for 19 years. Given that the Grievor was exonerated by the Lautoka Magistrates Court, it does raise the question whether his dismissal in employment was justified. Had the Union co-operated with the Employer at the outset, the truth of what had transpired at the workplace would have likely surfaced. Instead, it would seem that the withdrawal of co-operation meant that the Employer simply could not get to the bottom of the issue. The Grievor must also assume some responsibility for his apparent decision to withdraw his assistance in this regard. Had the Grievor assisted with the investigation, he may found himself in a completely different situation than he is in today. The Employer acted on the evidence it had at the time. It formed a view as to the Grievor’s conduct and his lack of co-operation and acted upon that. The burden of proof in civil proceedings is a different one to that in a criminal case, although in Briginshaw v Briginshaw^[3] it is noted that the more serious the allegation, the more stringently should the ‘balance’ test be applied.

[17] The Tribunal finds the dismissal decision in the circumstances, understandable, although based on the evidence available after ten years, perhaps not meeting the statutory test of justifiable for the purposes of Section 230(2) of the Employment Relations Act 2009. There was no evidence of any previous conduct breaches by the Grievor, so to that end, some award for compensation, may have been appropriate. Having regard to the 19 years of service and applying the current rate of a Simplex Driver at $4.64 per hour on an average 44 hour week ($204.16 per week), the Tribunal will treat the dismissal as a redundancy and award the Worker one week’s pay for each year of service ($3,879.04). That amount shall be offset by 50 percent, as a result of the lack of co-operation provided to the Employer during the investigation process, that may if it had been given, altered both the outcome and the need to have to adjudicate this matter ten years after the incident occurred. The Tribunal will award compensation in the amount of $1939.52 in full and final settlement of all issues arising out of the employment.

Decision

[18] It is the decision of this Tribunal that:-

• (i) The Employer pay the Grievor the sum of $1,939.52 within 28 days.
  

Andrew J See
Resident Magistrate

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^[1] See Tab C to the Employer’s Submissions dated 17 May 2013.
^[2] See correspondence from Union to Employer dated 16 July 2012.

^[3] [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938)