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Fiji Public Service Association v Land Transport Authority [2011] FJET 13; ERT Dispute 69.2008 (12 September 2011)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

ERT Dispute No. 69 of 2008

BETWEEN:

FIJI PUBLIC SERVICE ASSOCIATION
THE UNION

AND:

LAND TRANSPORT AUTHORITY
THE EMPLOYER

Appearances:
Mr. D. Nair for the Union
Ms. F. Kinivuwai and Mr. Savou for the Employer

DETERMINATION OF THE TRIBUNAL

The Employment Dispute

1] The employment dispute as referred from the Mediation Services is over the termination of employment of Mr. Amani Bola Rayawa on 27 November 2007. The Union submits that Mr. Rayawa was denied natural justice and views his dismissal from employment as unfair, wrongful, unreasonable and procedurally wrong. The Union seeks Mr. Rayawa's reinstatement without loss of pay and benefits.

2] Mr. Rayawa was appointed as a Vehicle Examiner on 12 March 2004 and was involved in a serious motor vehicle accident on 14 July 2006 and was admitted to Lautoka Hospital.

References

3] In this proceeding:

- the affected workman Mr. Amani Bola Rayawa shall be referred to as ("AB")

- the Fiji Public Service Association shall be referred to as ("the Union")

- the Land Transport Authority shall be referred to as ("the Employer")

Background and Evidence

4] The Employer adduced one witness in Ms. Lilieta Naiveli who was Manager Human Resources at the material time. Ms. Naiveli related to the Tribunal the process followed by the Employer which resulted in the medical boards and the termination of AB.

5] In evidence Ms. Naiveli told the Tribunal that AB was appointed Vehicle Examiner on 29 March 2004 and on 14 July 2006, was involved in a motor vehicle accident. He sustained multiple injuries and was admitted at Lautoka Hospital, discharged on 23 August 2006, re-admitted on 6 November 2006 and discharged on 10 November 2006.

6] Ms. Naiveli further told the Tribunal that AB reported to work on 21 February 2007 still on crutches and was engaged in the prosecution section for about one week before developing infections in his leg and returned to hospital for another surgery. This prompted Ms. Naiveli to send a memorandum on 25 April 2007 to the Employer's Chief Executive Officer reporting that AB had been on sick leave for 316 days and had exhausted his sick leave entitlement under Clause 17.2 of the Collective Agreement. Ms. Naiveli added that it was highly likely that AB may not be able to continue to carry out the role of Vehicle Examiner anymore due to the injury on his leg and in that connection recommended that AB be referred to a Medical Board to determine whether or not he should be continued to be employed. In the same memorandum Ms. Naiveli asked that AB be allowed on humanitarian grounds to be on sick leave with half a pay before the decision of the Medical Board.

7] On 1 May 2007, Ms. Naiveli wrote to the Orthopaedic Register outlying the injuries to AB, his returning to work for a few days and re-admittance to Lautoka Hospital, and the nature of his work as a Vehicle Examiner. She added that AB has been out of work for some 284 days and requested a report whether AB can continue to work with the Employer.

8] On 21 May 2007 the Orthopaedic Register sent his report which stated that AB to stay out of full responsibility/duty for the next six months from the time of discharge from the last admission which was 4 April 2007. The report added that whether AB continued to be employed with the Employer should be a decision made by the Medical Board.

9] Ms. NaivelI in her evidence stated that she wrote to AB on 2 July 2007 advising him of the report dated 21 May 2007, and since he had doubled his paid sick leave eligibility to 383 days, Management had decided to cease his half salary with immediate effect. In this letter to AB, Ms. Naiveli had advised AB that she would report on his condition again in October that year and thereafter make the necessary decision to determine his employability.

10] On 10 September 2007, the Lautoka Hospital wrote to the Employer confirming the appointment for AB to attend the Medical Board and on 13 September the Board was convened.

11] The Medical Board decision dated 14 September 2007 stipulated the following:

"It is the opinion of this Board that Amani Bola has been injured to such a degree that it has caused a lot of disability. However, he is improving. Amani in his present state can continue employment with work place readjustment for him. He should have another assessment in six months on how he is performing. He should be on light duties till next review in six months. He should start light duties 27/09/07."

12] On 17 September 2007, Doctor Joeli Mareko gave a sick sheet to AB for him to resume light duties on 24 September 2007. On that day 24 September, AB reported to wok at 7.50 am and was told by Ms. Naiveli at around 10.00 am to go back home as the Employer had not received the Medical Report and that AB was still on sick leave without pay. AB was terminated on 23 November 2007 as he could no longer perform the duties of a Vehicle Examiner.

13] Under cross examination Ms. Naiveli did not expressly state that AB was unfit for duties but would be reviewed after 6 months of light duties. She agreed that the position description of position could be reviewed and that the Employer did not attempt any re-adjustment on AB.

14] As to the report of the Medical Board Ms. Naiveli on re-examination stated that she had asked the Board whether AB could come back and work as a vehicle examiner and not to come and perform light duties.

15] AB in his evidence related how he was involved in the accident on 14 July 2006 when he was going to work for an early morning operation in Nadi with enforcement officers and that he ended up in hospital for two months on full pay. AB also told the Tribunal that he reported to work on 21 February 2007 on crutches and could not do the tasks of a vehicle examiner and therefore was doing light duties, like traffic writing and filing reports for about one week when he developed complications on the injuries and had to be re-admitted to hospital for further surgery.

16] In his evidence AB remembered being subjected to a Medical Board and that Dr. Joeli Mareko issued him a certificate on 17 September 2007 to resume work on light duties on 24 September 2007. It was when he returned to resume work on 24 September at 7.50 am that Ms. Naiveli called from Suva for him to go back home.

17] AB in his evidence confirmed that the Employer did not disclose to him the Medical Report and he had not seen it until the hearing of this case. He was terminated on 23 November 2007 on the ground that the Employer did not have any position for light duties. AB appealed the decision but his appeal was not heard.

18] AB reported to the Tribunal that he was also a victim of discrimination as this Employer has engaged an employee who has lost both legs as a spokesperson, whilst he with both legs intact had been terminated. This issue was raised in his cross examination and he told the Tribunal that he could also be employed as the spokesperson of the Employer.

Analysis and Conclusion

19] The Employer sees the provision of Clauses 6 (1) and (2) of the Collective Agreement as having an important bearing on this dispute. The Clauses provide for the following:

RETIREMENT OR TERMINATION OF EMPLOYMENT ON MEDICAL GROUNDS

6 (1) "The compulsory retiring age for an employee is sixty (60) years.

6(2) An employee whose employment is terminated on the grounds of illness, which renders the employee unable to efficiently perform the employee's designated duties shall be referred to a Medical Board consisting of no more than three senior and experienced medical practitioners who shall be appointed to examine the employee. Retirement on medical grounds may only be approved if the medical board certifies as to the inability of the employees to meet the requirement of the employee's job. However, in so far as is practicable, the Authority may assign such employees to other duties without loss of pay and/or other benefits."

20] From the evidence, the Tribunal sees that these Clauses 6 (1) and (2) of the collective agreement are so poorly structured that they will inevitably confuse the reader. First, it puts the termination first before the medical board in the opening sentence. In the second sentence it talks about retirement on medical grounds and if the medical board decided that the employee cannot perform the requirements of the job then the employer can use its discretion to assign such employee to other duties without loss of pay and benefits. Form the evidence the Tribunal cannot see these provisions of the Collective Agreement to be applicable to AB.

21] AB was terminated after the medical board had ruled that he could continue employment with light duties and because of his condition, there should be some workplace adjustments for him. The Employer disputed the report of the medical board in that it had wanted it to advise on whether AB could continue to perform the duties of a vehicle examiner and not if he could be engaged on light duties. The Tribunal disagrees with the position of the employer as in Ms. Naiveli's letter of 1 May 2007 to the Orthopaedic Register, Lautoka Hospital in the last paragraph she wrote......"Given the length of time Mr. Bola has been out of work, we are requesting if we could be availed with a report to indicate whether Mr. Bola can continue to be employed with the Authority. Your early response would be much appreciated." The report of the medical board directly answered the query raised by Ms. Naiveli as she had asked if AB could continue to be employed by the Authority.

22] The medical board was convened on 13 September 2007 to examine AB and the report was sent to the Employer on 2 October 2007. It was not disclosed to AB. The Employer's Board met on 30 October 2007 to decide on the medical board's decision and resolved that since there was no position for light duties to accommodate AB and since he could no longer perform the duties of a Vehicle Examiner, he was to be terminated. AB was terminated on 23 November 2007. He appealed but was not heard.

23] The Employer did not allow any workplace adjustment for AB and the Tribunal cannot believe that with this particular employer there were no work that can be classified as light duties. The Tribunal can see the position of the Employer in that the length of the continuous sick leave and the circumstances of AB's return, it was entitled to some degree of certainty and that was the main reason for the medical board. The report of the medical board was not complied with and the Employer's submission is that the report contradicted the request from the employer.
24] From the evidence the Tribunal concludes that the Employer breached its duty to AB to take reasonable and practical steps to provide him with light duties. This duty arose at least from the time he first returned to work and it was alive until termination.

25] The second breach of duty was the failure of the Employer to properly communicate to AB the steps it was taking to address the need to identify work that can be done on light duties; to be performed by AB. In the same vein the Employer failed to provide AB with the report of the medical board and it was a surprise to him to be terminated without being heard. It is an implied condition of all employment relationships that the parties will not breach the trust and confidence of the other. A fair and reasonable employer faced with AB's conditions should have undertaken a comprehensive identification of possible tasks that could be performed by him on light duties.

26] The Tribunal understands the concerns of the Employer in regards to AB's capacity to work and the obligations of good faith, as well as the implied contractual obligations of trust, confidence and fair dealing between the parties, required notification by the Employer to AB of the putting in place of appropriate assistance and the identification of alternative work.

27] The Tribunal rules that AB was denied natural justice, the termination was unfair, wrongful, unreasonable and procedurally wrong.

Decision

a] Mr. Amani Bola Rayawa to be reinstated by the Employer as a new employee and given a suitable position in view of this physical condition as stipulated in the report of the Medical Board; and

b] Mr. Amani Bola Rayawa to be reimbursed two (2) years' salary as part of the wages lost as a result of the dispute.

DATED at Suva this 12th day of September 2011

Sainivalati Kuruduadua
Chief Tribunal