Prasad v Suva City Council [2007] FJHC 18; HBC519.2005 (11 June 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 519 OF 2005

BETWEEN:

PREM SUSHIL PRASAD
Plaintiff

AND:

SUVA CITY COUNCIL
Defendant

Mr. D. Prasad for Plaintiff
Mr. J. Raikadroka for Defendant

Date of Hearing: 16th May 2007
Final submission date: 23rd May 2007
Date of Judgment: 11th June 2007

JUDGMENT

The plaintiff commenced employment with the Suva City Council in 1990 as a Health Education Officer. He became training officer in 1991. In August 2000 he was promoted to the post of the Human Resources Manager. He was demoted from the post of Human Resources Manager to the post of Training Officer on 29th December 2004. The demotion resulted from the plaintiff’s recruitment of sixteen unestablished staff in April 2004. The Council alleged that in recruiting these staff the plaintiff had not heeded the request of the Engineering Services Director to recruit certain skilled people. The plaintiff is claiming that his demotion was unlawful while the Council says that it was proper.

The unknown factors in this case are significant. The evidence on behalf of the plaintiff is marked by singular lack of important detail. I do not know his age or what was the retiring age in his employment, or what was his term of contract in terms of number of years and whether there was provision for renewal. His letter of appointment as Human Resources Manager was not a part of documents. That letter would have assisted the court as it might have contained terms of his employment or referred to some existing document and incorporated terms from that. Hence I had very little documentary evidence as to the plaintiff’s terms of employment. References were made by two witnesses to a Master Agreement but again the Master Agreement was for some unknown reason not produced. By consent of counsels, it was later given to court. However, that again proved of little assistance as parties had not during evidence pointed to provisions in the Master Agreement which were implied or incorporated as plaintiff’s conditions of employment.

RECRUITMENT OF 16 WORKERS BY HUMAN RESOURCES MANAGER – WAS IT PROPER?

There is no dispute that the Human Resources Manager the plaintiff recruited sixteen labourers. There is also no dispute that he alone made the appointments and no one else was on the interview panel. The evidence of the plaintiff is that he did not need to consult anyone when recruiting unskilled workers. There is also no dispute that a Memorandum of Agreement existed between the Council and Union which required number of unestablished workers to be 276.

In cross-examination the plaintiff stated that he was following the collective agreement so the number of workers was brought to 276 by appointing unskilled workers and he had been asked to do that by Director Administration. The defendant’s position is that the plaintiff did not have the sole discretion in appointing workers. It says that the Works Manager Eroni Tavi had, by a written three page detailed memorandum dated 10th February 2004, requested the Human Resources Manager to appoint sixteen workers. This memorandum is document number 3 in the bundle. It specifies the number of workers different sections of the council required. It requested Human Resources Manager to appoint two motor mechanics, one tyre boy, two carpenters, two plastermen, one electrician, one welder and seven labourers. Hence at least there were nine workers to be recruited who in one form or another needed to have certain skills. Eroni Tavi who is the Works Manager stated that he prepared the memorandum in consultation with section supervisors, and he expected recruitment in accordance with his memorandum. However that did not eventuate as those recruited were labourers. He stated normally he would sit on interview panel before recruitment but he did not sit on the panel as he was on leave. While on leave, one Jacob Fong relieved him. Jacob Fong testified that he did not sit on the panel either. I find that the plaintiff single handedly interviewed and appointed the sixteen workers.

The plaintiff’s initial position regarding this memorandum is that he did not see this until 9th June 2004 by which time he had already recruited sixteen unskilled workers. In cross-examination he admitted that he saw the memorandum in February 2004 before he recruited and that he was aware of its requirements. However he sent it to Director Engineering because Director Engineering had not initialed it. It came back to him in June 2004.

He further agreed to having a meeting with the Director in February 2004. The Director Engineering Jagdish Singh stated that he briefed the Human Resources Manager about the needs. Priority was skilled persons because this affected Council’s service delivery. When he learnt of the inappropriate recruitment, he was disappointed and wrote to the Council on 11th May 2004 expressing his disappointment.

I find that the plaintiff’s assertions that he tried to comply with requirements of the agreement with the Union is strange. The Union was not his employer but the Council. He was aware of the memorandum in February. The requirements of various departments were in it and it was brought home to him by the Director of Engineering. The plaintiff was in the position of great responsibility and it was up to him to ensure that the requirements of the various departments were met. If for some reason he could not do that, he should have given an explanation at the time. The Council relied on him to deliver proper personnel. He failed to do so. He filled the sixteen number of people who did not meet the requirements. The Council therefore found itself lumbered with at least nine persons who were not necessary to its manpower needs but whom it has to pay wages.

I also find in view of the evidence of Mr. Tavi and Mr. Fong and Mr. Jagdish Singh that Works Managers sit on interview panel especially when skilled personnel are required. The plaintiff by-passed them, ignored the memorandum dated 2nd February 2004. This was serious dereliction of responsibility on his part. He failed to protect the interests of his employer.

The plaintiff suggested that at times Councillors and staff exert pressure on him to appoint their family members or their relatives. Even some of the defence witnesses candidly agreed that this is so. However, there is no evidence that any such pressure was exerted on him in appointment of anyone of the sixteen workers. The only exception was the plaintiff appointing his own nephew.

The Town Clerk Ratu Ilotamasi Verenakadavu explained that even family members must meet the minimum criteria according to the needs of the Council.

It was also put to the defendant’s witnesses that if the recruited workers lacked the skills, then the council could have terminated their employment. The Director Engineering explained that it is difficult to terminate workers once you take them on as it was not their fault. I agree. The course of action suggested by plaintiff’s counsel was impractical because the council cannot remove workers for no cause and because one of its senior employees had let the Council down. It would have resulted in the Council possibly facing court proceedings with the Union.

I conclude therefore that the conduct of the Human Resources Manager in recruiting the sixteen labourers amounted to ignoring the needs of the Council and it was inconsistent with the duties of a Human Resources Manager. A Human Resources Manager is there to ensure manpower needs of the employer are properly met. The Council would have been justified in even dismissing the plaintiff because it was grave and serious misconduct. The defendant could regard the plaintiff’s conduct as being seriously inconsistent and incompatible with his duty as Human Resources Manager.

WAS THE PLAINTIFF PROVIDED DUE PROCESS IN THE INVESTIGATION?

I have seen the benefit of the Master Agreement to which reference was made by the plaintiff and the Town Clerk. The plaintiff in cross examination stated that the terms of employment for Human Resources Manager are implied from the Master Agreement but he was not bound by it. This is a contradiction. Implied conditions would bind both parties not only if they suit a party.

It is not necessary that all investigations be in the form of adversarial court proceedings. The nature of the enquiry very often depends on the circumstances. There was no issue here that the plaintiff had hired the sixteen labourers. It appears from document 4 dated 13th July 2004 that some enquiries were made of the plaintiff about the recruitment and he gave a reply by this letter.

On 2nd December 2004 six allegations in writing with details of those allegations were given to the plaintiff. He was also suspended on half pay; he was advised to have a counsel. The hearing was fixed for 10th December 2004.

On 10th December 2004 a hearing took place. At the hearing there were statements from various witnesses, the plaintiff was also asked questions. The investigators then found that certain allegations had been proven. The plaintiff was than referred to the Town Clerk before whom he mitigated before imposition of penalty. The Town Clerk after hearing his mitigation decided to demote the plaintiff.

The Town Clerk DW5 stated that the appointment of the Human Resources Manager was done by the Council but disciplinary matters come to him. There is no need to go to full council for disciplinary process he stated.

I conclude that the process of investigation was adequate in the circumstances of the case.

The Master Agreement at page 25 provides for situations for suspension, dismissal and grievance procedure. These provisions read:

"SUSPENSION

Where allegations have been made against an employee who are of such a nature as to require an investigation, an employee may be suspended from his employment on half pay pending the outcome of the investigation. Where the investigation substantiate the allegations, the employee may, at the sole discretion of the Employer be dismissed or subjected to such lesser penalty as the Employer may decide. In cases where investigations cannot substantiate the allegations the employee shall be reinstated in employment without loss of privileges and with full pay restored retrospective to the date of suspension.

DISMISSAL

The Employer will not dismiss an employee summarily except in the following circumstances:-

1. Where an employee is guilty of misconduct inconsistent with the fulfillment of the express or implied conditions of his contract of service.
2. For willful disobedience to lawful orders given by the Employer.
3. For habitual or substantial neglect of his/her duties.
4. For continual absence from work without the permission of the employer and without other reasonable excuse.
   

GRIEVANCE PROCEDURE

Whenever any grievance, dispute or difference arise, either out of the application or interpretation of the Agreement, or from any other cause, all work shall continue normally and all concerned will make sincere attempt to settle the matter in accordance with the following procedure:-

1. the aggrieved employee will first discuss it with the Head of Department.
   
2. If no satisfactory settlement is reached between them in 48 hours, the matter will be referred for discussion between the President or the Secretary of the Staff Association or their nominee and the Head of Department in consultation with the Personnel Manager.
   

100. If the matter is still not settled it will be referred to a conference between the President or the Secretary of the Staff Association or their nominee and the Town Clerk/Chief Executive Officer. The Personnel Manager will be in attendance.
     

4. if Agreement is not reached then the matter will be referred to a conference between the President or the Secretary of the Staff Association or their nominee and the Lord Mayor or his nominee, matters in dispute. The Town Clerk/Chief Executive Officer and the Personnel Manager will be in attendance.
   
5. if the matter is still not resolved amicably or satisfactorily within 3 days then it will be referred by either party to the Permanent Secretary for Employment and Industrial Relations in accordance with the provisions of the Trade Disputes Act (1973).
   
6. No strike or lock-out will take place until all the procedures as set out in (a) to (e) of this clause have been followed.
   

Provided that nothing in this clause will preclude the President or the Secretary of the Staff Association taking up any matter with the Town Clerk/Chief Executive Officer or the Personnel Manager."

The grievance procedure as laid out in the Master Agreement is specifically tailored to meet the needs of union members and not individuals who were not such members. The plaintiff was not a union member. The grievance procedure envisages representation of a worker by a senior union official and also in the absence of settlement, reference to Permanent Secretary for Employment and Industrial relation under the provisions of the Trade Disputes Act.

In the absence of clear evidence as to which clauses of the Master Agreement were implied into Human Resources Manager’s contract of employment, I consider it would be speculative and unwise of me to consider the case or any portion of it in reliance upon such provisions.

IS THE PLAINTIFF ENTITLED TO BE RE-INSTATED?

The position of Human Resources manager has been filled. Therefore there is no vacant post. Re-employment or reinstatement is not ordered where it would be futile for example, where it is shown that there is no available position or where the employee does not have the capacity to do the work or where mutual trust and confidence cannot be restored: Slonim v. Fellows [1984] HCA 51; (1984) 154 CLR 505, 515.

CAN I ORDER DAMAGES?

The plaintiff claimed for the difference in his earnings as Human Resources Manager and as Training Officer that $53.29 per fortnight. These figures are agreed as correct.

Demotion is not the same as termination. In case of demotion the employer and employee relationship still subsists. The plaintiff stated that he had no other option but to take training officers job as he had two children at the university. Obviously he has been the Training Officer since 2005 and accepted salary for it. The plaintiff’s conduct and that of the defendant subsequent to the disciplinary proceedings show that a new contract of employment has been substituted in lieu of the earlier one.

The original contract was terminated by the defendant for serious misconduct in the execution of duties by the plaintiff. In such a case no damages can be awarded.

Mr. Prasad referred to a number of case authorities. Those cases were decided in the background of certain overseas statutory provisions. No similar legislation in existence in Fiji was referred to by the plaintiff. It would be unwise of me to draw any principles from such cases.

Accordingly I dismiss the plaintiff’s claim with costs to be taxed if not agreed.

[Jiten Singh]
JUDGE

At Suva
11th June 2007