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Fiji Employment Tribunal |
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| Title of Matter: | Samueli Naloma v Air Terminal Services (Fiji) Ltd |
| Section: | Section 211 (1)(k)Employment Relations Act 2007 |
| Subject: | Adjudication of Grievance Arising Out of Dismissal |
| Matter Number: | ERT Grievance No 25 of 2017 |
| Appearances: | Mr K Tunidau, Kevueli Tunidau Lawyers, for the Grievor Mr N Tofinga, Fiji Commerce & Employers Federation, for the Employer |
| Date of Hearing: | Friday 16 February 2018 Tuesday 13 March 2018 Monday 19 March 2018 Monday 13 August 2018 |
| Before: | Mr Andrew J See, Resident Magistrate |
| Date of Decision: | 8 February 2019 |
KEYWORDS: Dismissal arising out of employment; Section 211 Employment Relations Act 2007; Employee Theft and Misconduct, Breach of policies and procedures; Circumstantial evidence in civil proceedings and balance of probabilities.
CASES CONSIDERED BackgBackground The Disciplinary Inquiry Committee took into account all the evidence gathered at the hearing and considered all mitigating circumstances
before delivering their decision. Allegations of Pilferage were inconclusive, however the committee concluded that you were tempering
(sic) with unclaimed goods and bonded assignments. This is a major concern as it is a breach of Customs Regulations and will have
negative impact on the company. The committee therefore finds you guilty of charge 2C(i) and (ii). The committee further deliberated and have recommended that you: Samueli be demoted to Cargo Services Assistant PPT Year 1 for a duration of 12 months and will not have access to the bond area
or airside. After serving 1 year, he will undergo refresher training immediately before being restated as a PPT Cargo Loader. Application by Employer to Strike Out Grievance The Case of the Employer Mr Richard Donaldson Mr Khalesh Kumar The Case of the Grievor Mr Maftoa Pene Mr Russell Holden Pakeeza Mohammed Ms Nanise Rokobiri Mr Tofinga: You said you saw Mr Naloma tampering in the rubbish? Ms Rokobiri: According to that video footage, papers on the box- that is what I saw The Issues Was the Dismissal Decision Justified ? “As a starting point, at least in the context of ‘unjustifiable dismissal’, the question needs to be asked, having
regard to the Statement of Reasons&#rovidrovided, whether a termination based on those reasons was justified. The question post Centanufacturing
v Kant,&#ht,&#here a new regulatory regime is installed, must be, Can the dismissal be justified? The inie initial question to ask
is not how the dsal takes place, or what is relied on as part of that proceprocess, but whether the reasons for giving rise to the
decision to terminate are justifiable. The concept of whether or not a termination or dismissal at work is jued or not, has, has
been enshrined in international labour law for many years. The Termination oloyment Convenonvention, 1982 (N8) adopted at theup>th International Labour Convention session inon in Geneva, sets out within Part II, Division A, a framework for assessietherot a dismissal isal is justified. Article 4 for example, pre, provides that “The employment
of a worker shall not be terminated unless there is a valid reason for such termination concerned with the capacity of conduct of
the worker or based on the operational requirements of the undertaking, establishment or service. Articles 5 and 6 thereafter provides
additional illustrations of circumstances that would not constitute a valid reason for termination. These include union membership,
filing a complaint or participating in proceedings against an employer, discriminatory grounds based on attribute, absence due to
maternity leave or temporary absence from work because of illness or injury. Northrop J op J in Selvdran v Peteron Plasticsstics,[25] provided the followingificawhen a comparablarable question was being asked as to whet whether a termination decision was a valid
one. In that case, his Honoured: Subsection 170DE(1) refers to "a valid reason, or valid reasons", but thet the Act does not give a meaning to those phrases or the
adjective “valid". A reference to dictionaries shows that the word "valid" has a number of diffemeaniepending on the context
in which it is used. In the Shorter Oxford Dictionary, thy, the rele relevant meaning given is " Of an argument, assertion, objection,
etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value." In the Macquarie Dictionary
the relevant meaning is "sound, just, or well founded; a valid reason." In its context in subsection 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason
which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the
same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements
of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies
in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and
obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer
and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, 5 May 1995, unreported, when Considering
the construction and application of section 170DC. A comparable set of criteria for setting out the “test for justification” is located within Section 103A of the
Employment Relations Act 20Z), that provides:- 103ATest of justification (1)For the purposes of section 103(1)(a) (2) The test is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have
done in all the circumstances at the time the dismissal or action occurred. (3) In applying the test in subsection (2), the Authority or the court must consider— (a) whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against
the employee before dismissing or taking action against the employee; and (b) whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the
employee; and (c) whether the employer gave the employee a reasonable opportunity to respond to the employer’s concerns before dismissing
or taking action against the employee; and (d) whether the employer genuinely considered the employee’s explanation (if any) in relation to the allegations against the
employee before dismissing or taking action against the employee. (4) In addition to the factors described in subsection (3), the Authority or the court may consider any other factors it thinks appropriate. (5) The Authority or the court must not determine a dismissal or an action to be unjustifiable under this section solely because of
defects in the process followed by the employer if the defects were— (a) minor; and (b) did not result in the employee being treated unfairly. The> The Dismissal Decision Allegations were received of pilferage and tampering of consignment 260-30390555 HB 6YM198 containing mobile phones. Subsequently a report was lodged with Border Police and Investigations are continuing. 5 pieces of mobile
phones were reported missing. You were identified as one of the employees to whom the allegations have been levelled at. The initial report indicates that you had
assisted in checking of flight FJ910 on the 10th of September 2016 and knowledge of the consignment..... On the 12 of September 2016, between the hours of 2242 and 2255 it was seen in the CCTV footage that you were searching a bag belonging
to another customer and later picking the box containing the mobile phones and rummaging the boxes. The act of searching and rummaging
through uncleared goods is breach of custom regulations related to the responsibilities of bond keeper and its employees. The act
is depicted as an attempted pilferage. The Appeal Committee, having reviewed the DI appeal file decided that there was no need for the company, yourself or FASA rep to appear
before them since documents were in order. The Appeal Committee unanimously decided the following: The Grievor Being “Identified” As One of the Employees that Allegations of Mobile Phones (Theft) Were Levelled At Searching a bag belonging to another customer that you were searching a bag belonging to another customer Picking the box containing the mobile phones and rummaging the boxes. It was not Samueli’s job to verify the boxes and for him to even be touching them, let alone resealing them was a breach. Other Issues and Evidence What Date Was the Tape Supplied for Resealing the Damaged Box? The Bag That Was Picked Up and Shown in Video Footage on 12 September General Allegation of Interfering with Goods Already Checked in In a civil cause "you need only circumstances raising a more probable inference in favour of what is alleged . . . where t proof is
not available it is enough if the circumstances nces appearing in evidence give rise to a reasonable and definite inference; they
must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter
of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley [1911] UKLawRpAC 47; (1911) AC 674, at p 687 . . . All that is necessary is that according to the course of common experience the more probable inference from the circumstances
that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence.
By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have
some greater degree of likelihood". These passages are extracted from the unanimous judgment of this Court (Dixon J., as he then
was, Williams, Webb, Fullagar and Kitto JJ.), in Bradshaw v. McEwans Pty. Ltd. (Unreported, delivered on 27th April 1951). . We should
think that, applying these principles to the present case, inferences sufficiently appear from the circumstances to which we have
referred that make it at least more probable than not that the unidentified vehicle was being driven in a negligent manner at the
time of the accident and that this was the cause of the accident. “ the more serious the consequences of what is contested in litigation, the more a Court will have regard to the strength and
weakness of evidence before it in coming to a conclusion (CEPU v Australian Competition and Consumer Commission [2007] FCAFC 132, (2007) 162 FCR 466at [30]). That means that if inferences aree drawn, ASIC has to establish that the circumstances appearing in the evidence give rise tise
to a reasonable and definite inference and not merely to conflicting inferences of equal degrees of probability.” Conclusions Remedy Andrew J See [1] It is most strange that this person was not called by the Employer to give evidence. [5] The video footage clearly shows the Grievor limping whilst walking. [19] The Fijian jurisprudence now sees a similar consideration taking place under the separate notion of ‘unfair dismissal’
as is clarified in Yanuca Island Limited tradi Shangri La FiLa Fiji Resort and Spa v Vani Vatuinaruku [20JHC92; ERCA 9 of 201f 2014 (8 February 2017) [20] See Exhibit E3(c)
Adler v Australian Securities and Investments Commission [2003] NSWCA 131;
AustraSian Securities and Investments Commission v Macdonald (No 11) [2009] NSW7 (23 April 2009).
<
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938)
Granada Tavern v Smith (2008)646 (15 May 2008)
)
Holloway v McFeeters [se">[1956] HCA 25;[1956] HCA 25; 94 CLR 470 (6 June 1956)
Ja v Lithgow City Council [2008] NS12 (24 November 20er 2008)
Kumar v Nanuku Auku Auberge Resort Fiji [2017] FJET 2;Grievance 122.2016 (10 February 2017)
Morley v Australian Securities & Investmenttments Commission [2010] NSWCA 331 (17mber 20er 2010)
Qantas Airways Limited v Gama (2008) 1R 537; [2008] FCAFCFCAFC 69 (2 May 2008)
Yanuca Isla60;Limited trading as Shangri La Fiji Resort and Spa v Vani Vatuinaruku [2017] FJH] FJHC92 ERCA 9 of 2014 (8 February 2017)
[1] Samueli Naloma commenced employment with the Respondent Employer on 9 November 2015 as a PPT Loader Cargo at the Nadi Airport.
On 26 September 2016, Mr Naloma was stood down from duties without pay, pending an investigation into allegations levelled against
him regarding pilferage and tampering of a consignment of mobile phones that had arrived at the Nadi Airport on Flight FJ 910 and
were being held within the Cargo Bond area of the Employer, whilst waiting customs clearance and release. A Disciplinary Inquiry
Committee was formed under Article 26 of the Memorandum of Agreement (“the Master Agreement”) between the Employer ATS and the Federated Airline Staff Association (“FASA’). On 28 November 2016, the findings of
the Committee were as follows:
[2] Article 26D of the Master Agreement makes provision for an appeal against the Disciplinary Inquiry Committee decision, where either the Union or Employer are dissatisfied
with the outcome. In this instance both parties appealed against the decision and an Appeals Committee was thereafter constituted.
The Appeals Committee unanimously decided the following:-
[3] Whether an Appeals Committee has the capacity to terminate the employment of an employee, perhaps is an issue that should be
left for another day, needless to say by letter dated 27 January 2017, Mr Naloma was advised of his dismissal and provided reasons
for that decision in accordance with Section 114 of the Act. A grievance was lodged with the Ministry of Employment, Productivity
and Industrial Relations on 17 February 2017 and the matter was brought before the Mediation Service on 21 and 28 March 2017. As
a result of the mediation between the parties being unsuccessful, the matter was referred to this Tribunal in accordance with Section
194(5) of the Employment Relations Act 2007.
[4] On 12 May 2017, the Employer made application by way of a Notice of Motion, to strike out the grievance on the grounds that it
was frivolous and vexatious and had little or no chance at all to succeed. Having heard the parties in relation to that Motion, the
Tribunal was disinclined to bring the matter to an end, without giving the Grievor the opportunity to be heard. One reason for that
was that the Employer had submitted to the grievance and attended two mediation sessions in a bid to resolve the matter. It could
hardly be said that the Employer through such participation, did not regard the grievance as one that was not real and had no standing.
[5] When the matter was ultimately scheduled to consider some of the preliminary factual issues, the Tribunal sought to resolve the
matter by way of a determinative conference. During that conference, Mr Tofinga for the Employer drew the attention of the Tribunal
to the fact that the finding that formed the basis of the dismissal decision, was that Mr Naloma had been “rummaging through
a consignment” and “not pilfering”. As part of that process, the Employer released a 34 minute Close Circuit Television
(CCTV) movie file from 12 September 2016, that captured some of the conduct in question and much time was spent analysing that footage
to endeavour to understand the arguments of the parties. On that same day, an Interim Decision was issued by the Tribunal, providing
initial impressions of the evidence and making clear to the Grievor, that on its face, the case of the Employer appeared compelling.
For that reason, the parties were encouraged to attempt to resolve the matter independently of the Tribunal process. Unfortunately
efforts in this regard were unsuccessful and the matter was thereafter scheduled for a hearing proper commencing on 16 February 2018.
[6] The following relevant material has been filed by the parties in this matter:-
[7] The first witness to give evidence on behalf of the Employer was Mr Richard Donaldson, who is the Manager Human Resources, ATS.
During the giving of his evidence Mr Donaldson:-
[8] The next witness to give evidence was Mr Khalesh Kumar, who is the Manager Ramp & Cargo Services and in that capacity was
the overarching manager of the Grievor. It was Mr Kumar who had appealed against the Disciplinary Inquiry Committee decision, for
reasons that included he found the decision to demote the Grievor too lenient, when it had been determined that the employee had
been found guilty of rummaging through goods[2]. The witness made clear that the Grievor was “only suppose to maintain and keep goods securely in the premises”. According to Mr Kumar, following the incident, he no longer had trust and confidence in the Grievor. Mr Kumar stated in his
evidence that :-
[9] Samueli Naloma worked in the role of a Cargo Loader, Cargo Bond Area at ATS. The Grievor explained the physical work environment
and the security protocols required for accessing and exiting the Bond Area. In his evidence, Mr Naloma stated that :-
[10] According to the witness,
[11] During cross examination, the Grievor admitted to having previously been employed as a Freight Imports Clerk and it was put to him
by Mr Tofinga that in this role, he would have had access to the Bonded Warehouse, to which Mr Naloma, denied. Mr Tofinga also questioned
the Grievor in relation to his knowledge of weigh bills and warehousing under the Customs Act and he too denied having had any first- hand experience with these issues. It was put to the Grievor that the Company Representative
at the Inquiry, Ms Adi Varara, did not remain within the Disciplinary Inquiry Meeting, an issue that the Grievor said that he was
not able to confirm. When challenged in relation to the allegations of rummaging of a bag, the Grievor stated that he had lifted
up the bag in question as it did not have a consignment number on it. Mr Naloma further stated, that he took the bag inside a container
to raise it onto an elevated position, as he had a sore knee and did not want to bend it that day[5].
[12] Mr Tofinga sought clarification from the Grievor in relation to his understanding of the way in which goods were cleared out
of a customs controlled area and Mr Naloma appeared to have a working knowledge of what was required to release consignments. Mr
Tofinga challenged the Grievor’s claim that he was denied or did not know that he was entitled to have a representative appear
on his behalf at the Disciplinary Inquiry Committee meeting and Mr Naloma repeated that he was neither trained nor told of that right.
Mr Tofinga then showed the witness Exhibit E3(u), a letter addressed to the Grievor dated 1 November 2016 from Mr Donaldson, that
made clear of the right to be represented at the Inquiry Meeting by a representative. Mr Naloma accepted that this was the case.
[13] Mr Maftoa Pene, was at the relevant time, the Manager Technical Services, ATS and was appointed to be the Chair of the Disciplinary
Inquiry. As a witness subpoenaed to give evidence by the Grievor, Mr Tunidau initially sought to clarify from Mr Pene, his understanding
of the processes of the Appeal Committee, including the rights of each party to be heard and respond to the allegations and counter
allegations. Mr Pene conceded that no evidence was sought from the Security Officers who were on duty during the relevant period.
The witness agreed that the Grievor was in a role that he could lift goods and assist with their labelling if removed and confirmed
that there was no evidence that Mr Naloma had rummaged through any items. The Chair of the Disciplinary Inquiry acknowledged that
the Grievor was not questioned in relation to his knowledge of the Custom Act and Regulations.
[14] It was at this juncture, it became obvious to the Tribunal that a greater analysis of the CCTV footage was required and the
Employer was directed to provide the Grievor the same. When the proceedings resumed several days later, Mr Pene was asked to describe
the events that he claimed were prejudicial to the Grievor. Relevant issues recorded by the Tribunal arising from the oral evidence
of this witness were identified within the footage are as follows:
Time Record
12/9/2016 Event/Description 22: 42.20 Bond Area 42.38 Group of employees verifying consignment[6] 43.00 Unknown Driver of forklift[7] 43.41 3 persons in area 43.57 Aircraft Containers 44.26 Forklift Driver[8] 44.40 Grievor 45.38 Consignment – with possibly rubbish nearby 45.51 2 employees[9] 46.0 4 unidentified persons[10] 46.29 Unknown person in jacket 46.39 Unknown person 47.33 Unknown person and no knowledge of what they are doing. 49.31 Unidentified objects on ground (possibly belts and tie downs) 49.51 The Grievor – limping on left leg, coming from the Office of Cargo Supervisor[11] 50.06 Cargo belts 50.17-30 Grievor bending down taking a possible suitcase; could not determine open or closed (admits no evidence of rummaging. 51.40 Grievor undertaking unknown task for 1 minute 52.32 -46 Grievor near unknown consignment of boxes; picks up what looks like a box, no evidence of rummaging[12]. 54.50 Grievor seen behind boxes, left hand not visible. 55.35 Unidentified person 55.57-57.54 Grievor – cannot see what he is doing; moving head 57.49 Rubbish 58.22 Person presumed to be Grievor removing rubbish 59.08 Grievor carrying something 23.01.41 Unidentified person[13]
[15] In cross examination, Mr Pene indicated that he had undertaken the task of being the Chair of a Disciplinary Inquiry on approximately
three previous occasions and confirmed that members of the panel had no concerns with the process that had been adopted. The witness
stated that he did not inquire as to why the Grievor appeared to be removing rubbish away from a rubbish area and had made no inquiries
as to the fact that rubbish trucks were used for the removal of stored rubbish on the site.
[16] Mr Russell Holden at the relevant time was the Manager Catering Services. At the time of this hearing, Mr Holden had been employed
with ATS for approximately 7 years. The witness gave evidence in his capacity as the Chair of the Disciplinary Committee and indicated
that he undertook this task of Appeal Committee member, together with Mr Faiyaz Ali and Mr Sekaia Nakautia. During the giving
of his evidence the witness:-
[17] At the time of hearing, Mr Pakeeza Mohammed had been employed with ATS for 21 years. The key issues arising out of the evidence
of the witness were as follows:-
[18] During cross examination, the witness was shown footage at 22:58:21 and was asked to clarify the unravelled set of rubbish
that the Grievor was seen carrying earlier. Mr Tofinga asked the witness to clarify where it was that the Grievor appeared to be
heading with that rubbish and the witness replied, “going into an area ........checked in goods..awaiting for customs clearance.”
[19] Pakeeza Mohammed told the Tribunal that the reason given by the Grievor as to why he was handling boxes, was that he “was
tagging them”. In relation to the video evidence that showed the Grievor picking up a bag and taking it into a container[15], the witness said that he was checking stickers. According to Mr Mohammed, he had no record of the Grievor’s specific response
as to why he had taken the bag into the container[16].
[20] The final witness to give evidence was Ms Rokobiri, who was also a Member of the Disciplinary Inquiry Committee. According to
the witness:
[21] In cross examination, the following exchange with Mr Tofinga ensued:
[22] The witness was then referred to various aspects of the CCTV footage and confirmed that the relevant parts were viewed by all
of the Committee members present. The following evidence was adduced as part of the cross examination:-
[23] Ms Rokobiri restated that she believed that the Grievor was not proficient in the relevant provisions of the Customs Act and its Regulations, as he had received no formal training. The witness stated that she had no knowledge of any earlier training
that the Grievor may or may not have had in previous employment.
[24] The question at the end of the day is whether or not the Employer was justified in dismissing the Grievor. This Tribunal in
Kumar v Nanuku Auberge Resort Fiji[18] looked at the question as to what is an ‘unjustifiable dismissal’, in this way:
As can be seen in the New Zealand case, issues of procedural fairness are intertwined within the notion of whether or not the decision
to terminate, is justifiable[19]. Be that as it may, the concept of what constitutes a justifiable decision within the meaning of Section 230(2) of the Promulgation,
could well canvas such concepts as to whether the dismissal decision was sound, defensible or well founded; not capricious, fanciful,
spiteful or prejudiced.”
[25] There are some interesting issues that can be observed arising out of the dismissal decision dated 27 January 2017, some of which
have not been well canvassed in proceedings. The most obvious would appear to be the following extract drawn from the dismissal letter:
[26] The letter later continues:
[27] Let us look at these allegations in turn.
[28] .This claim was not pursued during proceedings. It is unclear what the case of the Employer really was in this regard. The inference
from the dismissal letter, is that a person or persons had identified Mr Naloma as having been involved in the theft of the mobiles
phones, yet there was no mention of what was the basis for those allegations. It is noted that the initial submission prepared by
the Manager Cargo & Ramp Services, Mr Kumar, seeking approval for the constitution of a Disciplinary Inquiry[20] states that “Samueli Naloma was identified as one of the employees to whom the allegations have been levelled at”, yet beyond that, the Employer does not reveal who has made the allegations, on what basis and who else was involved. As a result throughout proceedings, the Employer seemed unable to provide a case theory as to how the phones actually went missing.
In this regard it seems quite amazing that through no part of the process, were security personnel interviewed. That is, one would
assume that the phones needed to be taken out through one of the exit points of the compound. The CCTV footage as provided by the
Employer has captured many workers in that Cargo Bond Area, yet the only evidence before the Tribunal related to the Grievor, his
supervisor and another Cargo Bond Officer who was interviewed as part of the process, but not called to give evidence.
[29] Mr Maftoa Pene, who was the Chair of the Disciplinary Committee, acknowledged that there was no evidence that the Grievor had
rummaged through any items. Mr Pene accepted that the video footage did not show the bag in question being opened, nor was there
any subsequent reporting of any missing items pertaining to that bag. Although the witness did state when he viewed the footage with
the other DI members, that “what we saw on footage was that he was ..(doing things) ....that he should not have been doing.” Mr Kumar also acknowledged that there was no evidence of the Grievor going through the bag. This issue is a very important one as the dismissal decision incorporates this finding of
the Employer where it states:
[30] The problem for the Employer is that there is not one witness, nor one moment of video footage that has been supplied in proceedings,
showing the Grievor “searching a bag”.
[31] The various witnesses in proceedings seem to have different understandings in relation to this issue. Mr Kumar wrote in his
Appeal against the Disciplinary Inquiry decision[21], that:
[32] When giving his oral evidence, Mr Kumar stated that the Grievor was only suppose to maintain and keep goods secure in the premises.
Mr Donaldson on the other hand agreed that the Grievor was entitled to handle items in the bond area, though later clarified that
he was “not (the) best person to answer”. One would have thought that the better person to give evidence as to what
it was that the Grievor was supposed to be doing at the relevant time, would have been either his Supervisors or co-workers. In any event, the Employer makes the point that there does not appear to
be any reason why the Grievor was doing what he claimed to do and why was it taking him nearly six minutes in the video to perform
that task[22].
[33] Because of the scarcity of good evidence substantiating the claims of either party, it is worthwhile reviewing the remaining available
statements and exploring what else may be assisting in the analysis:-
[34] From the evidence before the Tribunal, it is unclear whether the Grievor had requested tape to seal a damaged box containing
mobile phones, on 12 September 2016. Much turns on this date, as this is the day in which the Employer has sourced the CCTV footage
that in turn formed the basis of his decision to stand down and subsequently terminate the Grievor. This is reasonably significant
at one level, as it may demonstrate how flawed the Employer’s investigation process actually was. On 10 September 2016, the
evidence is that the Grievor checked in the consignment of the 48 mobile phones from the flight FJ910 and personally stacked them
on a pallet outside the bond beside the check in area[28]. The CBO in charge of that flight, Mr Nadan stated there was no signs of any pilferage or missing cargo from that flight and that
the cargo was checked and stored. In the Statement that was provided by a Mr Joseva Degei, Cargo Bond Officer, it would appear
that he had been working on the day shift of an unspecified date and that some time just after the Grievor had commenced afternoon
shift, he had asked for tape to reseal a carton. If the Employer is suggesting that this activity took place on 12 September 2016,
then why did it not source the relevant CCTV footage for around 4.00pm, the time that Mr Degei suggested that the request for tape
had been made. Instead the footage that the Employer relies upon, is that pertaining to the end of the Grievor’s shift at almost
11.00pm.
[35] The Tribunal finds it highly unlikely that the ‘request for tape’, coincided with any of the activities shown on
the CCTV footage as provided to the Tribunal for that date. Even if it was the case that the Grievor was incorrect in saying that
his request for the tape took place on 21 September 2016 and that the date should have been 12 September, there is no correlation
between the timeline given by Mr Degei to that of the footage. There is no evidence whatsoever of Mr Naloma sealing any boxes or
stealing any mobile phones.
[36] As was mentioned earlier, in relation to this bag in question, the Employer concedes there was no claim as to any missing goods. The
Grievor stated that he was only tagging the bag as its tag was missing. The Employer has been unable to refute that claim. So what
remains?
[37] As Mr Tunidau correctly pointed out at the earlier stages of these proceedings, the video footage supplied to the Tribunal in
the course of the hearing, represented only 34 minutes in time. A time period from 10.42pm to 11.16 pm on 12 September 2016. But
what does the video footage capture in the remaining period in question? That is, from the time the cargo was first unloaded when
Flight FJ 910 arrived into Nadi Airport on 10 September[29], until the time that it was discovered that the mobile phones were missing some 13 days later. This was estimated to be a period
of 18,720 minutes[30]. What would the video footage have showed the Grievor doing during that period? Would he have been seen lifting bags and boxes,
removing rubbish, replacing lost tags and sealing damaged boxes? It is all hard to know, but the evidence in this regard is very
poor. The physical description of what it was that the Grievor actually does in the ordinary course of his working day remains unclear
and it would seem that there are mixed understandings from the various witnesses that gave evidence as to what this actually entailed.
Certainly he was authorised to handle goods, because the Grievor makes the point that he stored boxes containing mobile phones on
a pallet after being unloaded from Flight FJ 910. Mr Degei, in his capacity as Cargo Bond Officer, also didn’t appear to object
to the fact that the Grievor was sealing a damaged box and he supplied tape for him to do same. The available evidence of the Employer
is simply insufficient to establish any substantial breach by the Grievor.
[38] That is not to say that there may not have been a breach, only that there is insufficient evidence before the Tribunal and presented
during proceedings, to favour the establishment of that fact. And even in relation to the video footage on 12 September, there were
several employees shown captured within the 34 minutes, none of whom any ATS witness identified and nor were they interviewed. The
Tribunal has played this video footage over and over again and finds it very difficult to understand for example, why the person
walking out of the bond warehouse at 22:55:35 and looking in the direction of the Grievor at that time, was not interviewed. Surely
that person knew the Grievor was amongst the pallets at that point in time. And what was the Grievor lifting above head height at
22:57:04? That was not the sign of a person wishing to conceal his hand movements.
Circumstantial Evidence and the Standard of Proof in Civil Proceedings [39] In the Employment Tribunal where civil proceedings are commenced, the standard of proof to be established is one that is based
on the balance of probabilities.[31] In such cases, the approach taken by Courts and Tribunals is that the graver the allegation[32] and consequence[33], the higher the threshold test should be. And where the case of the Employer is one that relies on circumstantial evidence, then
the party charged with the burden of proof must establish that the more probable inference supports the case that is alleged; in
this case the justification of the dismissal based on misconduct[34].
[40] In Holloway v McFeeters,[35] the Australian Hight statedtated:
[41] And as later stated by Gzell J in Australian Securities and Investments Commission v Macdonald (No 11),[36]
[42] Whilst at first blush during proceedings on 1 November 2017, this Tribunal believed that a prima facie case of misconduct was
established against the Grievor, the further and ongoing interrogation of the evidence and the hearing from the witnesses of both
parties, has led the Tribunal to a different conclusion. There is simply insufficient evidence to draw the conclusions that have
been done by the Employer in claiming the justification of the dismissal.
[43] For example, consider the three persons identified in the video footage at 22:43:41 and why is their activity regarded as any
different to that of the Grievor commencing from 22:52:31. In the first case, Mr Pene claims that the workers were checking a consignment,
but how can these activities be differentiated from that being undertaken by the Grievor? There is no evidence of the Grievor opening
any of the goods being held. There is insufficient circumstantial evidence to favour an inference of rummaging as suggested by the
Employer. The reasons given by the Employer in justifying the dismissal decision cannot be substantiated and on that basis cannot
be preferred to those of the Grievor, on the balance of probabilities. After an extensive interrogation of the evidence, the Tribunal
cannot support the dismissal decision.
[44] In the Submissions of the Grievor dated 6 September 2018, it is argued that the Grievor should be reinstated in his employment. That is the primary remedy available
under the Act and one that should be considered wherever possible. The Tribunal sees no reason why the Grievor should not be returned
to his former position. The Employer is a large organisation and has extensive experience in handling human resource issues and industrial
relations disputes. A worker who has been unjustifiably dismissed, should not be deprived of the right to return to work, simply
that it may be regarded as unpalatable or inconvenient.
[45] This matter first came on before this Tribunal on 25 October 2017, having earlier been the subject of mediation activities.
At that time, the Employer sought to have the grievance struck out, on the basis that it was frivolous and vexatious[37]. It is unfortunate that the timing of this final decision now made, was also stymied by the fact that the submissions of the parties
had not earlier been forwarded to the Tribunal by the registry. In any event, the matter has now been determined and the Tribunal
is of the view that the worker should be reimbursed for lost wages as calculated in a manner consistent with the terms of employment
contained within the Letter of Offer dated 29 October 2015. At that time, the Grievor’s salary scale was $8,731.00 to $13,238.00.
[46] The Employer shall be ordered to reimburse the Grievor for 75% of his lost wages and other accrued entitlements for the period
from the date following dismissal, Friday 27 January 2017 to 22 February 2019. The rate of calculation should be based on a PPT Loader
Cargo at the 2nd Year of Service. The discounting for lost wages, takes into account the fact that some mitigation for the lost income is expected
and that there is no reason why after such a lengthy period of time, that the Grievor should not have found temporary employment.
All leave entitlements and other contributions that are due, should accrue at the rate of 75% during that period and there should
not be a break in service continuity. The Grievor should thereafter be allowed to return to work on 25 February 2019 and must be
placed on the 2nd Year salary increment where he should be next entitled to a salary increase, consistent with the anniversary of his commencement
date with the Employer.
Decision [47] It is the decision of this Tribunal, that:
Resident Magistrate
[2] This is an issue that is central to this case and will be addressed further on within the judgment.
[3] This issue was discovered to be untrue or incorrect.
[4] The Employer denies that this was the case.
[6] Note these employees are seen in that position for nearly 5 minutes. There was no evidence that emerged as to who those employees
were and what in fact they were precisely doing.
[7] Note this person was not interviewed in relation to allegations of theft of mobile phones.
[8] Unknown person who was not interviewed by Disciplinary Inquiry Committee.
[9] No inquiry made as to what they were doing.
[10] No inquiry made as to what they were doing.
[11] Was not asked why he came out of office.
[12] Witness conceded that the DI Committee did not find out who were the fellow employees at that time or where the Supervisor was
positioned at this time.
[13] Note the Grievor claimed to have finished duty at 11.00pm and the Witness conceded that no verification of that fact was undertaken
by his Committee.
[14] Mr Turuva did not give evidence before the Tribunal.
[15] See at 22: 44:40 and 22:50:18.
[16] Remember here, that there was no evidence that this bag had been tampered with, or that there was anything deemed missing.
[17] The Witness was asked did she know whether the Grievor had placed the rubbish on top of the assignment, or was it already on top?
She responded, “he put it on top.”
[18] [2017] FJET 2 at 24-27.
[21] See Annexure RD07 to the Affidavit of Richard Dona Donaldson.
[22] He may have in fact been performing several tasks at that time.
[23] See Exhibit E3 ( r ) Cargo Manifest dated 10 September 2016.
[24] See Exhibit E3(k) and note that this version of events is consistent with that given by the Grievor in his Statement dated 26 September
2016. (See Exhibit E3 (f).
[25] Exhibit E3(j).
[26] This Cargo Bond Officer (CBO) was not called to give evidence by the Employer, nor is there any records of interviews of the other
employees who had worked on that shift. As this statement was tendered through Mr Donaldson, it is regarded as hearsay evidence
and can only be given weight that accords to such a characterisation. There is no reference to which date the events contained
within the statement actually refer and that is a critical issue.
[27] See Exhibit E3(f).,
[28] Whether this version of events complements the Statement of Mr Nadan at Exhibit E3(k) is hard to acertain, but the Employer has
not challenged this account.
[29] It is understood that this is a Sydney to Nadi flight, that ordinarily arrives in the early evening.
[30] See Worker’s Preliminary Submissions filed on 24 May 2017 at Paragraph 7.5.
[31] See Briginshaw v Briginshaw [1938] HCA 34;8) 60 CLR 336R 336 (30 June 1938)
[32] See Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [137]; Granadvern v Smith (2008(2008) FCA 646 5]
[33] See Morley v Australicurities & Investments Commission [2010] NSWCA 331A 331 at [746].
[34] See Jackson v Lithgow City Council [2008] NSWCA 312 at [9][35] [1956] HCA 2; 94 CLR 470 a-481
[36] N2003/131.html" title="View Case"> [2009] NSWSC 287 (23 April 2009).
[37] See Notice of Motion dated 12 May 2017.
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