Fiji Institute of Technology v Fijian Teachers Association [2011] FJHC 830; ERCA7.2009 (23 December 2011)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCA NO. 7 OF 2009

BETWEEN:

FIJI INSTITUTE OF TECHNOLOGY
APPELLANT

AND:

FIJIAN TEACHERS ASSOCIATION
RESPONDENT

Appearances: Mr. Valenitabua for the Appellant.
Mr. Leweniqila for the Respondent.
Date and Place of Judgment: Friday, 23rd December, 2011 at Suva.
Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT

CATCHWORDS:

EMPLOYMENT LAW – APPEAL –Interpretation of Terms of Collective Agreement – Rules of Interpretation.

CASES REFERRED TO:

Hassan Din and Finance Sector Management Staff Association v. Westpac Banking Corporation [unreported] Fiji Court of Appeal Case No. 66 of 2003
Investors Compensation Scheme Ltd. V. West Bromwich Building Society [1997] UKHL 28; [1998] 1 All ER 98.

The Cause
[1]. The appeal arises from the decision of the Employment Relations Tribunal ("ERT") of the 27th day of August, 2009 where it held that under clause 22.2 of the Collective Agreement ("CA"), discretionary leave is an entitlement of an employee, not given at the discretion of the employer, but taken at the discretion of an employee, whenever an application for the same is made by the employee.

[2]. The decision arose from an employment dispute reported by the appellant against the respondent. The terms of the dispute required the ERT to interpret the provision on discretionary leave provided for in clause 22.2 of the CA.

[3]. The ERT had applied the principles of interpretation outlined by the case of Hassan Din and Finance Sector Management Staff Association v. Westpac Banking Corporation [unreported] Fiji Court of Appeal Case No. 66 of 2003 in which case their Lordships were guided by the observations of Lord Hoffman in the case of Investors Compensation Scheme Ltd. V. West Bromwich Building Society [1997] UKHL 28; [1998] 1 All ER 98 at p.114.

[4]. In following the cases, the ERT rejected the evidence of the legal counsel of the employer who testified on the meaning of discretionary leave. The ERT found the evidence to be inadmissible as well as unreliable on the ground that the witness was part of the appellant's management board and that his evidence was directed at supporting the position of the appellant.

[5]. The grounds of appeal raised by the appellant were 5. They were that the ERT erred in law and in fact in:-

1. misapplying the principles of interpretation;
   
2. allowing the evidence of Josua Mataika to be adduced and then disregarding it;
   
3. holding that the discretionary leave was an entitlement when the same was restricted and limited;
   
4. not properly interpreting clause 22.2 of the CA; and
   
5. not considering the submissions and evidence of the appellant.
   

The Submissions
[6]. Mr. Valenitabua submitted that the ERT was correct in holding that the discretionary leave is an entitlement, and is triggered on an application by the staff member but was incorrect in holding that discretionary leave was not given at the discretion of the employer. Mr. Valenitabua submitted that the granting of the annual discretionary leave is at the employer's discretion because the staff member has to prove that he or she qualifies for leave.

[7]. Mr. Valenitabua further submitted that clause 22.2.2 of the CA states that "Discretionary leave shall be used in blocks of not less than one week, unless the staff member consents otherwise, and shall be timed having regard to the operational requirements of the Institute." Mr. Valenitabua submitted that the latter part of the clause "shall be timed having regard to the operational requirements of the Institute" indicates that the appellant had the final say as to whether the application would be refused or allowed. When the employer considers that the employee's leave application will affect the operational requirements of the Institute, the employer can refuse such leave.

[8]. It was also submitted that Mr. Mataika's evidence was clear, that allowing the employees to take leave during the semester, the employer's position would be compromised, as it is the time when the students need the teachers the most. He stated that the ERT had considered the evidence of Mr. Mataika but did not attach any weight to the same.

[9]. Mr. Valenitabua stated that it is the employer who is in the position to consider what the operational requirements of the institute are, not the teachers.

[10]. Mr. Leweniqila submitted that neither the ERT misapplied the principles laid down by the case it followed to reach the conclusion it did, nor did it err in reaching the conclusion it did.

The Analysis
[11]. I shall first of all refer to grounds 2 and 5 of the appeal which states that the ERT erred in law and in fact in allowing the evidence of Josua Mataika to be adduced and then disregarding it and also erred in law and in fact by not considering the submissions and evidence of the appellant.

[12]. Mr. Valenitabua's submission shows ignorance of the ERT's ruling. The ERT, in its judgment considered the evidence and submissions of the employer. Mr. Mataika's evidence was rejected on two grounds, one being that pursuant to Lord Hoffman's dicta in the English case, evidence relating to the negotiations between the parties that led to the collective agreement would be inadmissible and secondly that Mr. Mataika's evidence was directed towards supporting the position of the employer. Firstly, I do not find that the principles of interpretation were wrongly applied. Secondly, I see no reason to interfere with the Tribunal's acceptance or rejection of the evidence particularly because Mr. Mataika was not considered an independent witness to testify on the issue. The ERT is the best judge of this aspect having heard the evidence from the witness and having judged his demeanour and deportment. I do not find any wrong inference being drawn from the evidence of Mr. Mataika. Ground 2 is baseless and so is ground 5 as after considering the evidence and submissions only did the ERT reject the same.

[13]. The other grounds of appeal can be addressed by answering the issue as to what the term "shall be timed having regard to the operational requirements of the Institute" in clause 22.2.2 means.

[14]. The plain reading of the clause is very simple. It means that the employee has the discretion to apply for the leave having regard to the operational requirements of the institute. A teacher of course is in the best position to understand and decide what the requirement of the students in his or her course are and whether or not he or she should take leave at the point in time. The management looks after the administration of the institute and thus it would not be in a better position than the respective teacher of the course to now the teaching requirements of the particular course. So, finally, having considered the need to teach and the need to take leave, the aspect is left at the discretion of the teacher. I do not find any error of interpretation by the Tribunal on this aspect when it said that the employee has the final say when it comes to discretionary leave and that the employee must consider the operational requirements of the institute and time the leave accordingly.

[15]. It is very important that the entire clause on discretionary leave be read:-

"22.2 Annual Discretionary Leave for Teaching Staff

22.2.1 Entitlement

All Teaching Staff are entitled to three weeks (15 working days) leave in each leave year which shall be used at the discretion of the staff member and shall not be available for duty, with the following exceptions:

(a) During the period in which the staff member is required to undergo initial training (in terms of the requirements of section 20.3 above) she/he may be required to allocate up to two weeks of discretionary leave in any year for that purpose.

(b) Any member of the teaching staff who is identified as requiring remedial assistance to meet normal performance standards, may be required to use up to two weeks of discretionary leave in any leave year for direct professional development aimed at improvement in areas where performance inadequacies have been identified.

22.2.2 Timing

Discretionary leave shall be used in blocks of not less than one week, unless the staff member consents otherwise, and shall be timed having regard to the operational requirements of the institute. Wherever possible discretionary leave will be combined with annual holiday leave in such a way as to provide for an unbroken period of at least four weeks.

22.2.3 Provision for Buying Back discretionary Leave.

In exceptional circumstances, and with the concurrence of the staff member concerned, the period of discretionary leave may be used for teaching provided that the staff member is not required to undertake a period of training or professional development as required under section 22.2.1 above. Where staff is so employed they will be paid an additional sum which shall be 30% of the base salary to which they are normally entitled. During the period of such employment the total salary paid to the staff member shall be at the rate of 130% of the base salary. Such payments will be made only when the staff member concerned has fully met his or her teaching obligations during the balance of the year".

[16]. The provision of buying back leave in clause 22.2.3 states that in certain circumstances, the period of discretionary leave may be used for teaching provided that the staff concurs to this arrangement. This indicates that where there is a need for teaching, the staff could be asked to use the leave for teaching but the staff must agree to this aspect. I come to a conclusion that where the staff has taken leave but teaching becomes necessary, the staff will finally decide whether he or she would teach. This indicates that the decision to get the leave and use the leave is solely that of the employees.

[17]. There are no merits in Mr. Valenitabua's submissions that discretionary leave is finally left to the discretion of the employer. The CA clearly states that it is the prerogative of the employee to apply and get the leave.

Final Orders

[18]. The appeal is dismissed and the appellant is ordered to pay costs of the appeal in the sum of $1000.

Anjala Wati
Judge

23. 12. 2011

To:

1. Mr. Valenitabua, counsel for the appellant.
2. Mr. Leweniqila, counsel for the respondent.
3. File: ERCA No. 07 of 2009.