IN THE EMPLOYMENT RELATIONS
TRIBUNAL AT SUVA

ER Grievance No. 10 of 2008

BETWEEN:

MR. SIMIONE TURAGA
GRIEVOR

AND:

AIR TERMINAL SERVICES (FIJI) LIMITED
EMPLOYER

Appearances:
Mr. S. Lesi for the Grievor
Mrs. R. S. S. Devan for the Employer

DETERMINATION OF THE TRIBUNAL

The Employment Relationship Problem

1] Mr. Simione Turaga's claim for unfair dismissal on 16 May 2008 in that he was not accorded natural justice.

References

2] For the purpose of this proceeding:

- the grievor Mr. Simione Turaga shall be referred to as ("ST")
- the respondent employer Air Terminal Services Limited shall be referred to as ("ATS")
- the grievor's witness Mr. Sela Fauoro shall be referred to as ("SF")
- the employer's witness Mr. Gordon Charmers shall be referred to as ("GC")

Background and Evidence

3] The claim for unfair dismissal by ST was the subject of mediation proceeding at Nadi Labour Office on 21 October, 2008 but could not be resolved and had to be referred to the Tribunal for adjudication.

4] The matter was first called in the Tribunal in Suva on 18 November 2008 and again on various other occasions where the parties were asked to exchange written submissions and other documents before the hearing was held in the Lautoka Magistrates Court on 27 April 2010. 

5] ST has been employed by ATS for 2 years and 8 months from the beginning of August, 2005 as a Permanent part Time Passenger Assistant Agent, secured through advertisement in the daily papers by ATS. The duties of the post include assisting passengers with special needs, such as those on wheel chair, handling excess luggage and also check in passengers for Pacific Blue flights bound for Sydney, Australia.

6] In his evidence ST related to the Tribunal the events of the day in question; 15 April 2008; that his supervisor Mr. Sushil Prakash had asked him to extend his working hours from 13.30 to 15.30 p.m. in order to check in passengers for flight DJ154 bound for Sydney. ST in his evidence stated that there was nothing unusual about extending shifts, that he rarely checked in passengers and also had forgotten his sign in code for the Pacific Blue System. ST continued that he did not want to keep the passengers waiting and that was the reason why he requested co-worker SF's code to use.

7] Continuing with his evidence, ST related to the Tribunal the encounter with the Young family who had approached him to assist with their excess luggage. He understood that he could not assist without the approval of his supervisor Mr. Sushil Prakash and since he could not locate him, he had no other choice but to clear the Young family with the assistance offered by other passengers with less weight.

8] ST also referred to the encounter with passenger Farrugia Immanuel who had an excess weight of 8 kilograms but refused to pay, he did not have any cash, but offered his credit card but was turned down as Pacific Blue did not accept credit cards. ST added that this particular passenger was shown the ATM machine, left his bag behind and went to withdraw cash but did not come back, but there were enough weights left to check in his bag and close the flight.

9] In evidence ST denied taking money from any passengers in exchange for free excess luggage and also denied stealing SF's sign in code as he alleged that all these were coming from GC as Manager Passenger Services. As to the Occurrence Report, ST related to the Tribunal that GC called him to come into office and complete it otherwise a report would be made to the Police. For the Occurrence Report, GC dictated to him what to write and after that he advised him to go home and to wait for a disciplinary inquiry at work.

10] ST concluded his evidence that ATS did not follow the Disciplinary Procedure in Article 26 in that he was not part of the process.

11] GC in his evidence referred to the flaws in ST"s employment record and that prior to 28 January 2008 he was issued with a final warning letter for allegations ranging from demanding money, absenteeism, evasive attendance and late attendance.

12] GC told the Tribunal that the issue at hand came to light when ATS received an e-mail from Chris Woods the Ground Operation Manager for Pacific Blue in Sydney about possible fraudulent activity at Nadi through a verbal complaint made by one Farrugia Immanuel on arrival in Sydney.

13] GC called ST on 17 April 2005 to respond to the allegations and he (GC) took down the details of verbal submissions. GC reported to the Tribunal that ST"s responses to the allegations were very slow and deliberate and at certain points did not make sense to the point where he had to ask him to leave the room and think about what he had been asked.

14] The following day 18 April 2005, GC told ST to think about his responses and to provide a written explanation. GC stated that ST put in his submission that he was going to get the passenger a discount and was going to charge $100. GC added that the conduct involved fraud, misappropriation and breach of airline and safety regulations and subsequent to the interview ST was stood down. GC also added that Virgin Blue had requested that ST be removed from being engaged on further Virgin Blue Services.

15] Under cross examination GC informed the Tribunal about the system and process at ATS and that an "Occurrence Report" is a statement given by an employee and in this case by ST and he confirmed that it was not taken under caution in that ST was not cautioned in that whatever he said could be used against him in subsequent proceedings in the Tribunal or Court. GC further told the Tribunal that was how such affairs were conducted at ATS and in that case it was due to the serious allegations against ST. GC added that statements were given freely at ATS and in this case ST came in on 17 April 2005 for him to take down the details and next day ST had to come in to fill in the Occurrence Report.

16] GC told the Tribunal under cross examination that due to the allegations of breach of trust, fraud and threat to the safety of the passengers, ST was stood down on half salary. When questioned as to why he personally handled ST's case and not by the human resources unit, GC replied that because of the technical nature of the allegations, he had to come in.

17] The Human Resources Officer for ATS wrote to the Federated Airline Staff Association on 22 April 2008 attaching the report on ST's admission and that his continued employment would bring disrepute to ATS. The Association replied on 8 May 2008 that it endorsed ATS's decision to terminate ST under Article 2C and that it was satisfied that the relevant provisions of the ATS/FASA Agreement have been complied with. On 16 May 2008 ATS wrote to ST terminating his employment with effect from 17 April 2008.

Analysis and Conclusion

18] The Tribunal after hearing the evidence has narrowed down the issues to the following:

 (i) ATS conduct of the interview providing grounds for claims of being disadvantaged;

 (ii) The application of Article 2C; and 

 (iii) The application of Article 26.

19] The evidence of ST points to the actions of ATS and the way it conducted the interview and the completion of the Occurrence Report. ST insisted that he was subjected to duress during the interview and GC instead of allowing him to tell his story subjected him to interrogation. There was no union representation and from the evidence ST called his union but nobody turned up. In that regard the Tribunal agrees that ST was disadvantaged by a series of unjustifiable action by the employer ATS 

20] According to the common law rule that an employer having power to infringe on the rights of an employee is bound to hear him before exercising that power is both fundamental and universal and this Tribunal is satisfied that those rights have been breached. Here we have ST who serves on the frontline of the business and who occupies an important link in terms of travelling between the airlines and the public. The duty of good faith extends to GC and at least requires him to seek explanations from the worker as the matters before him are serious and need further investigations. He did not need to interrogate ST and GC did not deny that in evidence.

21] 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 ATS 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 as it is dealing with aviation and its associated dangers. However, this does not give ATS unbridled license to impose its personal prejudices or values on ST. The concept of fairness implies an open – minded approach and reasonableness implies rationality.

22] Now let us look at Article 2C which stipulates that an employee may be disciplined for an offence. When disciplinary action is contemplated the Company shall take action in accordance with the procedure laid down in Article 26 – Disciplinary Procedure; except where the employee deserts employment with the Company (Article 2F and Article 15C). Where an employee commits an offence which in the opinion of the Company is of such a serious nature, that continued employment of the employee will bring disrepute to the Company, its employees and its operations, and also where an employee admits committing an offense in writing, in such extraordinary cases, the company shall discuss the matter with the Association and take such disciplinary action as mutually agreed.

The Company may initiate moves to terminate the services of an employee through disciplinary inquiry under the following circumstances:

(i)	for willful misconduct inconsistent with the fulfillment of the conditions, expressed or implied, of his contract of service.

(ii)	for gross incompetence and gross negligence in the work he is engaged to perform.

(iii)	for willful refusal to carry out the duties properly assigned to him.

(iv)	for continual absence from work without the permission of the Company and without other reasonable excuse. 

23] From the evidence there is nothing to show that a disciplinary inquiry was ever conducted. There was an interview conducted by GC and subsequent to that the filling in of the Occurrence Report by ST. There was no evidence that a discussion was ever conducted with the Association. There was an exchange of letters and the Association confirmed the termination in that the relevant provisions of the Collective Agreement has been complied with. Nobody cares, not even the Federated Airline Staff Association which should have inquired whether the due process was ever accorded to ST and whether he was cautioned before the interview.

24] ATS right to dismiss summarily depends upon a breach by ST of the express or implied terms of his contract, but the breach must amount to a repudiation or be sufficiently fundaments. In William vs. Racher, Edmund – Davies L.J said: "Reported decisions provide useful, but only generate guides, each case turning upon its own facts………[A] contact of service imposes upon the parties a duty of mutual respect."

This means that opposite conclusion may be reached on similar facts and that, whilst in one context one single, relatively minor breach may be sufficient to justify summary dismissal, the same will not be true of other, different contexts. 

 25] The most common instances of breaches of contract giving rise to summary dismissals are misconduct, disobedience to lawful orders and negligence. "Although every case turns upon its own facts, a single act is less likely to justify summary dismissal than a series of actions; the quality of the breach is what counts, not the consequences flowing from it, and the more serious the breach the more likely it is that it will be held to justify summary dismissal." Stapp v. The Shaftesbury Society [1982] I.R.L.R. 326.

26] Again the Tribunal is not satisfied that Article 2C was properly applied in that there was no evidence tendered to refute the allegations that ST was coerced into admitting the allegations against him and that he was not given the opportunity to cross examine those making the allegations. If there was to be a disciplinary inquiry, the accused should have the right to be heard and that includes the right to cross examine and mitigate for these rights form the cornerstone of our justice system.

27] Article 26 deals with the Disciplinary Procedure and from the evidence this was not adhered to by ATS. What happened in GC own words was that he stepped in due to the seriousness and technical nature of the allegations. There was no disciplinary inquiry and ST was terminated on 16 May 2008 effective from 17 April 2008 the date in which he was stood down. What ST is asking for is the justification of ATS actions.

28] 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.

The employer must show that a dismissal was justified substantially and procedurally and this was where ATS fell short. All the circumstances at the time the dismissal occurred would include the type, resource and size of the organization.

This employer is a big employer. For this employer to treat one of its employees in the way it did to ST like the way it confronted him with allegations and not listening or considering his explanations was unethical.

A dismissal following poor or unfair procedures will not necessarily result in the Tribunal finding that the dismissal was unjustified if the conduct was bad enough but may result in compensation.

29] 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."….

In 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 the worker was confronted with the allegations, denied the formal disciplinary procedure in his employment contract and served the termination letter. That would not qualify as a minor procedural inadequacy.

30] From the evidence the Tribunal is satisfied that ATS did not make any attempt to accord ST 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.

In the same token, the Tribunal recognizes that employers are not perfect and their conception of what a fair procedure is varies and 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."….

31] In the earlier Unilever's case 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 worker was called by the General Manager told to write an explanation of what happened and then sent home. That would not qualify as a minor procedural inadequacy.

32] The Tribunal in analyzing the evidence and arguments has come to the conclusion that ST has a grievance in that he was unlawfully, unjustifiably and unfairly terminated in that the employer did not follow fair procedures especially the right to be heard. 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. 

33] The Employment Relations Promulgation 2007 in sections 230(2) (a) & (b) provide for the following -...in deciding the nature and extent of the remedies to be provided in respect of the employment grievance, consider the extent to which the actions of the worker contributed towards the situation that gave rise to the employment grievance; and if those actions so require, reduce the remedies that would otherwise have been decided accordingly. The Tribunal does not see the need to activate this part of the law, as ATS should bear the costs of not fully complying with the Agreement.

34] The hearing of this case was done some 23 months after the termination and taking into consideration all the circumstances, the Tribunal makes the following decision.

Decision

 a] Reinstatement of Simione Turaga with no loss of benefits from the date of termination or

 b] Payment of all wages lost as the result of the termination.

DATED at Suva this 8th day of August, 2011

Sainivalati Kuruduadua
Chief Tribunal