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Fiji Employment Tribunal |
IN THE EMPLOYMENT TRIBUNAL
AT SUVA
Dispute No. 40 of 2008
BETWEEN:
SUVA CITY COUNCIL STAFF ASSOCIATION
Union
AND:
SUVA CITY COUNCIL
Employer
Appearances:
Mr. Krishna for the Suva City Council Staff Association (or "SCCSA")
Mr. N Lajendra for the Employer
DETERMINATION OF THE TRIBUNAL
1.0 Employment Relations Dispute
1.1 Background to the Dispute
1.1.1 This matter although reported under the old legislation, was eventually recorded as a dispute on 13th August 2008 with the Permanent Secretary of the Ministry of Labour, pursuant to section 169(2) of ERP and Regulation 12(1) as contained in the Form ER5 that outlines and reads: "Details of the dispute (the problem) – Please explain what the dispute is about or list the matters in dispute", where the Union reported:
"The dispute is over the termination of Mr Ravin Chand with effect from 10th October 2006. The Association maintains that the actions taken by the Council was harsh, unjustified, unlawful and unwarranted and therefore demands that Mr. Chand be reinstated to his position without loss of benefits retrospective. Mr. Chand was alleged to have attempted to bribe the Deputy Mayor Councilor Joseva Gavidi to secure Towing Services for Auto Winches".
1.1.2 On 15th September 2008, as dispute was accepted by the PS, it was referred to the Mediation Unit pursuant to Form ER6 under section 170(4) (b) of ERP and Regulations 14(1), outlining word for word the employment dispute reported by the aggrieved party as contained in the Form ER5. Thereafter, mediation was attempted on 24th October 2008 but was not successful as contained in the Form 4 forwarded to the Tribunal dated 27th October 2008. The mediator had referred the dispute to the ERT in accordance with s194 (5) of ERP but did not outline the nature of unsettled employment dispute other than state in a covering letter of even date that attempts made by the appointed mediator to reach an amicable resolution of the dispute had been unsuccessful.
2.0 Cause before the ERT
2.1 In the Employment Relations Tribunal (or "ERT"), the Dispute was listed for Mention on 7 November 2008 and then listed in the call-over list for 13 February 2009 which was vacated and then re-listed for 13 March 2009.
2.2 In the meantime, the parties were directed to file preliminary submissions by the Chief Tribunal, Hon. Sainivalati Kuruduadua whereby the Employer filed its Preliminary Written Submissions on 22nd December 2008 and Association filed their Preliminary Written Submissions by 8th January 2009.
2.3 Following several adjournments thereon, this matter was finally fixed for Hearing of the Dispute which commenced on 21 September 2011 and completed on the same day.
2.4 During the course of the hearing, the Employer called one witness, the former Deputy Mayor of SCC, Mr Gadivi and the Association called their member, Mr Ravin Chand as their only witness. The parties presented closing oral submissions and were given 14 days to file closing written submissions, first by the employer and thereafter 14 days was also given to the SCCSA to file their closing written submissions. Employer filed their closing submissions on 4th October 2011; no closing submission was filed by the SCCSA. A determination or ruling was anticipated by 15 November 2011.
2.5 The Tribunal in the absence of the nature of dispute outlined in the Mediator's report (Form 4) that was referred to the Tribunal has relied on the terms of reference as per Forms ER5 and ER6 to understand the dispute and the surrounding facts. As a general comment, when unresolved matter is referred from the Mediation Unit to the ERT it is vital for the Tribunal to have lucid understanding of the nature of the dispute that has remained unsettled between the parties as evidently the mediation attempt can either resolve in part, the dispute (or grievance) or it can fail entirely on the original complaint lodged therein. The "mutated" state of the dispute should be identified by the Mediator for ease of reference when referral is made to ERT as sections 195 (2) & (3) of Employment Relations Promulgation 2007 (or "ERP") does not allow ERT to have access to mediation records or what transpires therein.
2.6 Referring to the Association's preliminary written submissions filed on 8th January 2009, the facts of the dispute are summarized as follows:-
2.7 Suffice to note that Mr. Chand remains unemployed to this date.
2.8 In the employer's Preliminary Submissions dated 22nd December 2008, under the heading "Background Facts" it is stated that:
2.2 The dismissal of Mr. Chand relates to various attempts made by him to bribe the deputy Lord Mayor, Cr Josefa Gavidi, particulars of which are as follows (underlining is my emphasis):-
[a] That on 1st February 2006, Mr. Chand attempted to bribe Deputy Lord Mayor, Cr Josefa Gavidi with the sum of $10000.00 at his residence at 69 Robertson Road, Suva.
[b] That on 1st February 2006, Mr. Chand visited Deputy Lord Mayor, Cr Josefa Gavidi at his residence at 69 Robertson Road, Suva, second time and attempted to bribe with a sum of $4,000.
[c] That on 1st February 2006, after Mr Chand's visits to the Deputy Lord Mayor, Cr Josefa Gavidi, Mr Chand rang the Deputy Lord Mayor twice on his mobile and attempted to persuade him to use his position to make the invalidated tender to Auto Winches to be accepted again.
2.9 We can note from 2.2[a] above that the "various attempts" made by the member to bribe the Deputy Mayor ensue from a single day's event, that is, what transpired on 1st February 2006.
2.10 Both sides had their own version of facts or explanation when the grevior had admitted that he approached Mr Gavidi on 1st February 2006 and later even called him on his mobile phone but not for the reasons stated by Mr Gavidi relating to bribery allegations.
2.11 I have noted that the counsel for the employer had eloquently stated in his closing oral submissions that the truth is only known to the two gentlemen. There was no concrete evidence before the ERT as to what truly transpired between the member and the Deputy Mayor apart from one person's word against the other. In other words, which witness was more credible is something that the counsel for the employer alluded that the ERT had a task when determining whether or not the employer's decision to terminate the member was fair and justified?
3.0 Preliminary Remarks
3.1 The ERT was concerned that both parties failed to appreciate and present evidence on the basis that this dispute was termination "with immediate effect" The Association had maintained that the actions taken by the Suva City Council (the employer) was harsh, unjustified, unlawful and unwarranted and therefore demanded that Mr. Chand be reinstated to his position without loss of benefits retrospectively.
3.2 No employment contract between the parties was presented to the Tribunal to allow assessment of the same in terms of the provisions invoked by the employer relating to termination. As the ERT understands, the parties have between them an alive Master Agreement which governs the terms and conditions of the employment. This document was not presented to the ERT either through the preliminary submissions or through the hearing although the employer attempted to demonstrate something in their closing written submissions which is mentioned in the later part of the decision (at page 5).
3.3 Considering that the employer and employee's representative both have failed to clearly lay out the provisions in the Master Agreement as part of their evidence which was relied upon to effect termination of Mr. Chand, this Tribunal will then examine if this is a case also caught under the provision of "summary dismissal" as per statutory application pursuant to section 33 of the ERP 2007, based on the fact that the termination was with immediate effect.
3.4 If the employer's decision to terminate was deemed summary dismissal on the basis that lawful cause to terminate is established via the findings of serious or gross misconduct (say, under section 33(1) (a) of the ERP), then the prerogative will be with the employer to terminate the employment immediately as long as the manner in treating the employee in carrying out the dismissal is fair and just. Due process then of is no consequence if employer treats the employee with fairness, respect and dignity when carrying out the dismissal (as per ruling of Wati J in the case of Carpenters Fiji Limited v Isoa Latianara ERCA No. 7 of 2011).
3.5 But as a starting point, the ERT first has the task to examine if both, issues of substantive and procedural justification for termination would apply here. Was there a "cause "for termination or was the termination "without a cause" under the said Master Agreement that the employer relied upon. Whether due process was accorded and whether it was a fair and mutually accepted process as per any agreement and understanding between the parties.
3.6 As a general rule, the employer bears the onus to prove that there were valid reasons for termination (substantive reasons), and further demonstrate to the Tribunal, whether the termination was just and fair in the way it was accorded to the member. Here, where substantive justification, being the reason or cause for termination is concerned, the employer will have to prove that the allegations of any misconduct amounted to "gross misconduct" (as stated in the employer's preliminary submission) that would justify the employer regarding the employment relationship or any existing Master Agreement as being discharged with or without notice.
3.7 Whilst the onus is on the employer to disprove allegation of unfair and unjust termination put to them by the Member through his representative, SCCSA, the Member equally has to show reasonable evidence why his termination should be deemed unfair and unjust, either arising out of a breach of contractual relationship and/or breach of laws protecting his rights and interests as an employee or "worker" such as those provisions under the ERP 2007. This was somewhat absent from member's evidence.
3.8 The other issue of concern to this ERT was the relevant evidence as to establishing the real cause or reason pertaining to the dispute that lead to termination of the member, that is the gist of the "bribery allegation" and how it happened and thereafter related chain of events was not clearly presented. I can only comment that instead of the evidence on the bribery issue to establish that was employer's "justification" or "valid reason" for termination, there was much debate between both parties on a particular tender process involving procurement of towing service by the employer when clearly the member had nothing to do with the tender process in his capacity as an Enforcement Officer – Towing.
3.9 However, the employer's counsel attempted to show the nexus between the tender process and how it became an issue of conflict (or dispute) between the member and the employer. Through the evidence of Mr Gavidi, the employer tried to explain that it was in connection to a tender calling, its process of award on 1st February 2006 and subsequent meetings held to discuss the same at the employer's Council meetings, in whatever nature, Committee or full meetings, that eventually led the employer to use this particular reason to investigate bribery allegations against the member.
3.10 In ERT's view, leading evidence on this issue when really the member had no direct dealing in the tender process, which facts were confirmed by both employer and Union's witnesses in the course of hearing was not really necessary. It would have been sufficient to demonstrate that the employer's witness, Mr Gavidi was involved in a particular tender, where allegedly the member offered to bribe him in connection to that tender. Not present evidence how the tender was advertised, what the tender process involved and how it was opened, tabled before the Council meetings and how it was invalidated or not.
3.11 Instead, the account of 1st February 2006 in terms of when and how the bribery took place should have been more precise. This is because, according to the employer's preliminary submission and allegations put to the Member through his suspension letter (Exhibit marked as No. 20), it is this incident that occurred on 1st February 2006 when the member is alleged to have bribed the Deputy Mayor at his residence and again over the phone is the gist or the main reason (or offence) that led to the termination of the member. Not that he interfered and influenced the outcome of the tender process to validate it through a corrupt practice as the evidence through Exhibits Nos. 1-13 purported to show although clearly from the evidence of Mr Gavidi, he was more reactive to this issue when he decided to invoke his liberty to report the purported bribery attempts made by the member some five months later.
3.12 There was no objection from Mr. Krishna when these evidence were led by Mr Lajendra as part of the bundle of documents for the Employer, marked as Exhibit "Nos. 1 to 24".
3.13 Since the employer's main and the only reason for termination was the bribery allegation, the Deputy Mayor's stand at the time he was being bribed, what steps (if any) he took to address this issue and what did he see as the member's gain in all this, is what can be regarded as helpful, relevant evidence. In my opinion, as far as evidence relating to the substantive issue of the dispute in relation to the "gross misconduct" in concerned, the ERT heard very little on the account of 1st February 2011, which is the bribery allegation.
3.14 Final and most important issue, ERT was not clearly presented with evidence whether the decision to terminate went through a "due process" that the member would and should have been reasonably entitled to under the Master Agreement as would be his right to defend or to be heard when he was facing the allegations. In the Master Agreement as stated in the letter of termination dated 19th October 2006, it refers to Section VI, Clause (e) (l) of the Master Agreement. No evidence was led to clarify what this particular clause states for the purposes of termination of an employee and/or in the same Master Agreement, what should have been the due process for termination when allegations of such nature are facing an employee of SCC.
3.15 In fact it was only after the ERT alluded both parties that they failed to present the Master Agreement to the Tribunal which was used to invoke the termination clause therein, then the parties requested to submit the same through their closing written submissions. The employer finally attempted to explain Section VI, Clause (e) (i) of the Master Agreement [but I note that the termination letter used clause (e) (l)].
In any event the main part of Section VI, Clause (e) (i) of the Master Agreement states:-
"(e) Dismissal
The Employer will not dismiss an employee summarily except in the following circumstance:-
(i) Where an employee is guilty of misconduct inconsistent with the fulfillment of the express or implied conditions of this contract of service" (my emphasis).
3.16 Undoubtedly the Master Agreement is important for purposes of understanding the established grounds and procedure when applying the "dismissal" clause which is key to assessing whether there is any breach giving rise to redress and remedy sought by the member before the ERT. The employer has invoked this particular clause which only allows for summary dismissal where an employee is guilty of misconduct. This would suggest that a proper investigation and findings into the misconduct is essential prior to arriving at a decision as to whether the employee is guilty or not.
3.17 Obviously a prudent and reasonable finding of "guilty" verdict cannot be based on just any type of evidence or be short of the required standard "on the balance of probabilities" as would be same applied before the ERT in such circumstance. Otherwise the danger is that the employer will take any type of evidence, small, trivial or irrelevant and invoke such provisions if they want to just terminate an employee for whatever reason that they will declare to be a "misconduct".
3.18 To that end, it would have been helpful if the entire Master Agreement was available to the Tribunal to assess what are some circumstances amounting to 'misconduct' that was agreed between both parties to allow the employer to invoke dismissal clause therein. In doing so, was any responsibility apportioned on the employer to seek response from the employee prior to a "guilty" finding and proceeding to summary dismissal, which is termination with immediate effect this employer had applied as an entitlement under this clause.
3.19 In my assessment, while the employer failed to some extent to be consistent with the standards of procedural fairness, the Association has failed entirely to assist its member to ensure procedural fairness was adhered to as per any agreement between the parties. It has also failed to put relevant evidence before the ERT to illustrate what the Association in essence perceived in this termination as a breach of the right of the employee, particularly the right to be heard properly by the employer through an established grievance or dispute process when he was being terminated. I shall explain this later to reveal that the member did not appreciate what was expected of him when responding to the allegations put to him by the employer as per Exhibit marked as "No. 22" (Findings of the Investigation Team) in the bundle of evidence tendered by the Employer. Further, I did not hear any evidence whether the member had open to him any avenue to mitigate the allegations that was put to him before he could be summarily terminated and whether there are any established appeal process under the Mater Agreement that SCC workers have available to them when they are confronted with such situations.
3.20 While I shall apply the governing statute as to the "procedure" for termination under the ERP 2007 in the absence of any clear indication under the Master Agreement, it is always helpful when dealing with such cases to have some guidance as to what the member expected under the terms and conditions of an individual or Collective Agreement. After all, such agreements furnish a "good faith" basis that must exist between the parties to guard and complement the intricate employment relationship. It also allows on "case by case" basis, any reasonable adjudicator to draw inferences as to what should have been an agreed, fair and just process for termination and whether this was accorded to the employee.
3.21 Further, during the hearing, none of the parties touched on the member's employment history to indicate to the Tribunal what kind of an employee Mr Chand has been, working with SCC for more than ten years rising from the ranks of Pool and Parking Attendant to the current position of Enforcement Officer – Towing. Whilst this appears to the first line of Union's argument normally against unfair and unjust termination, during the entire hearing, there was absolutely no mention by the either party whether this was his first offence or that he was cautioned and disciplined before in any given situation to warrant such penalty by the employer, being the most severe of the kind, when an employee is summarily dismissed.
3.22 There was also no evidence if he was ever issued any formal, verbal or written warnings by the employer and whether the member has ever been in trouble with the employer in any other circumstance in his eleven years of service.
3.23 There was also no relevant evidence how the "misconduct" was viewed to be so gross or serious under employer's relevant employment contract, code of conduct and/or human resource policies (if any) given the size, type of work and resources of the employer and what were some of the consequences of such allegation upon investigation. The employer tried to persuade this ERT to some extent when it stated in their closing written submission that:
"...the actions of Mr. Chand had the potential of sending a wrong message to the other staff of SCC that SCC is a working environment where there is corruption and malpractice. The same could be said that the general members of the public, in particular the ratepayers of SCC. The actions of Mr Chand would create a general impression that there is a lot of corruption in SCC and its officials can easily be bribed" (at page 7).
3.24 No written policies regarding such misconduct were presented by the employer. Clearly, the Master Agreement was expected to provide answers to these queries to allow the Tribunal to understand the overall employment relationship that existed between the parties. These sorts of information further assist the ERT to determine and mitigate employer's "justification" of the termination which shows that the employer had spelled out clearly what sort of circumstances could see an employee leaving his/her job if he/she committed those offences. It also assists to ascertain whether the employee suffered any injury to his dignity, reputation and emotions at the time he was terminated. The worst case scenario is when there is no lawful or valid justification in the allegations in terms of the allegations being unable to be proved, where the member would still have to deal with the humiliation that comes with a termination without a justification. Therefore, these issues assist the ERT to determine the extent of damage sustained by the member and what should be the compensation keeping in mind his long service, impeccable record (assuming there was no warnings, etc), and most significantly how he accepted the termination in the manner it was accorded.
3.25 Since the employer elected to terminate the member, the burden is on the employer to show that there were good reasons for taking such a drastic step and thus understating those reasons for termination becomes imperative when determining whether it was fair and justified.
3.26 I am merely making these preliminary remarks to make both parties understand that despite the rules of evidence in the ERT are not strictly applied under section 231 (2) of the ERP, it still places significant burden on the employer to prove that their actions to summarily dismiss a long standing employee such as Mr. Chand without due consideration to his employment record, his long service and previous offences, if any, must then mean that the employer had believed that they had the required justification for termination to make someone jobless and with "immediate effect" and that too was their last resort without consideration to a lesser penalty.
3.27 Once made unemployed, Mr. Chand would be without a means for survival as he would have lost the most basic tool, being his employment to sustain a decent living. More so, he would still need to maintain dignity when enduring the daily impact of facing the family and society whilst answering or placating the loved ones, what would be the consequences of the bribery allegations made against him. In this case, the member is still without a job and to be in that position for three or more years places even a heavier burden on the Tribunal to carefully weigh the evidence, whether it was well presented or not in such a way that allows the member his unfettered right to be heard in a decent manner.
4.0 Employer's Reason(s) for termination?
4.1 Bribery Allegation
4.1.1 At this point, I am not examining whether the employer's reason(s) for termination was fair and justified other than attempting to understand that if the "bribery" allegations as stated by the employer in the Preliminary Submissions and indeed through their only witness, the former Deputy Mayor of SCC, Mr Gavidi were their main reason for terminating Mr. Chand, then this one particular incident (of 1st February 2006) has to be the employer's only defence for termination where substantive allegations of "gross misconduct" is concerned.
4.1.2 Clearly from 1st February 2006 up-til the time the member was terminated or indeed prior to this particular incident, there was no evidence before the ERT to show that there were no other allegations against the member or that he had a track record of such related misconduct or any other misconduct. Therefore, no other reason was given for his termination during the hearing except what transpired on this particular day and later reported on or about 15th August 2006 to be treated as a formal allegation against the member as per his purported involvement in attempting to bribe the Deputy Mayor.
4.1.3 No other person or any employee of SCC or the Councilors or indeed the Lord Mayor himself knew of this incident until the Deputy Mayor broke his silence and made the allegations formally against the member sometime in July-August 2006. This particular bribery allegation along with the tender award to Auto Winches became a reason to prompt an internal investigation against the member, resulting in his termination in October 2006.
4.1.4 No independent or external police investigation was invoked or carried out which was confirmed by both witnesses although this was one recommendation of the Investigating Team/Committee as per Exhibit marked as "No. 21".
4.2 Were bribery allegations with any merit?
4.2.1 While it is not the task of this Tribunal to unravel the truth behind the bribery allegations against the member which rightly is a matter for the police to investigate and prosecute should they have reasonable evidence to do so, however, given that during the hearing much debate was around this issue being the reason for termination, I am compelled to give it a cursory look so as to understood from the strength of evidence before me whether this was a justified reason for termination or not.
4.3 Employer's Evidence
4.3.1 Let me attempt to use the evidence before me relating to the tender process for supply of towing services from the time it was advertised and opened (sometime from Jan-1st Feb 2006).
4.3.2 In the Exhibit marked as "No.4", which is the Minutes of the Tender Committee dated Wednesday, 1st February 2006 at 11.00am, I note that on page 1, the member was not present at the time the tender was opened as he is not in the list of those 15 persons present at the meeting. In the item No.1 Titled: "Opening of the Tender for Towing Services", 4 tenders were received including one in regards to Auto Winches with a deposit of $100.00. On page 2, I note it was declared that Auto Winches tender was disqualified.
4.3.3 I have noted that the meeting held on 1st February 2006, the day the alleged bribery took place has a start time of 11.00am and it ended and closed at 11.20am. The employer's witness, Mr Gavidi in his testimony (at page 2 of the transcript), stated:
"Mr Chand, Ravin came home after the opening of tender at 11....And Mr Chand came home and asked me if I can do something to qualify that tender and the company was ready to give me $1000.00. I told Mr Chand, no I won't do that nor I will accept the money. He returned a few hours later at my residence ...and tried to bribe me again with a new amount $4000 on the same day ...in the early evening he again called, Mr Chand called again twice for the same case which I still say No..."
4.3.4 In the Preliminary Submissions as contained in page 3 of this ruling (2.2 above) it is alleged that there were at least three incidents of bribe attempted by the member on the same day and this was maintained by the witness in the examination in chief.
4.3.5 This was, however, negated by the member who confirmed he visited Mr Gavidi only once in the day.
4.3.6 Suffice to note, this Tribunal did not hear from either side to clarify the exact times the bribery incident took place. No facts or details that transpired in the form of a meeting or telephone conversation was also clarified that could help this Tribunal to understand whether the bribery allegations had merits and justification to qualify for a ground for summary dismissal under the Master Agreement between the parties (that is, being "guilty of misconduct inconsistent with the fulfillment of the express or implied conditions of this contract of service"). Both counsels in this matter were fully pre-occupied with the tender process and what transpired at the Council meeting and the items discussed therein that they did not focus their efforts to explain to the Tribunal how serious the purported allegations against the member was that occurred on one single day of 1st February 2006 and the related steps taken by the employer to deal with it.
4.3.7 Further it was not disputed that the member or Mr Chand had no direct influence or dealing in respect to the tender process, to the extent of also not being part or being present at the Council meetings or discussions pertaining to the outcome of either accepting or rejecting the tender. He was also not the cashier who accepted the tender deposit. Nor there was any evidence from any person from the employer's side such as the cashier involved in this tender process to suggest that the member was in any way involved in influencing the payment of $100 and later using him/her to justify to the Tender Committee that the mistake was on the part of the cashier and thus the tender of Auto Winches should be accepted and qualified despite the tender deposit was incorrect.
4.3.8 Subsequent to the alleged "bribery" incident taking place in February, this witness stated that during a meeting held on 21st March 2006 to adopt in the Council items relating to the award of tender to Auto Winches it was recommended that they be given tender for 3 years, he failed to notify the employer of the said incident relating to bribery attempts made to him by the member and/or raise any objection at that stage that Auto Winches should not be given tender as he suspected they abused the process where Mr Chand was involved in certain corrupt practice.
4.3.9 I also note from the Exhibit No. 11 – 'Evaluation of Tender-Towing' dated 16th May 2006 by the Director Finance, Mr. Ravi Chand (not the member) that his evaluation suggested that the cashier was at fault where he wrote "this, however, was no fault of the tenderer, as he had paid the $200 deposit...". That evaluation report recommended that Auto Winshes be awarded the tender for three years. Nowhere in this evaluation report there was any mention of the member (Mr Chand) playing a hand in influencing the decision of the award of the tender to Auto Winches.
4.3.10 Mr Gavidi stated that he referred the validated tender and subsequent award to Auto Winches for three years back to the Council's Committee when he realized that "Auto Winches would go through another forum to try and validate his invalidated tender" (at page 12 of the transcript).
4.3.11 Here he was questioned by Mr. Krishna during cross-examination why he did not report the bribery attempts made by the member in connection to qualifying Auto Winches tender anytime earlier and he stated that:-
"Firstly when Mr Chand came over to me and said that...I was thinking of him. He held the job there, he has family and he went to that extent to bribe me that's why I held it off. I held if off long enough because I thought of him...the whole thing ...dragged on for 6 months it wasn't awarded then taken back to the Committee. I took it back to the Committee because when I see the extent of the management, Auto Winches did not get through me first time Mr Chand came home and then they went and blamed it on the cashier. I really don't know what happen with the cashier. There was no investigation on the cashier but I did raise it case of bribery later on that was before the tender was awarded" (at page 11-12 of the transcript and my emphasis).
4.3.12 In my view Mr Gavidi suspected and believed that the management involving the Finance Director (where Mr Chand was not a part) influenced the decision to award the tender to Auto Winches. For him to suggest investigation against the cashier also implicates that the whole process of awarding tender was tainted with doubts and questions while he still remained silent on the initial incident of bribery attempts purportedly made by the member in relation to same tender. This makes no sense at all as he clearly was upset with the turn of events that gave an invalidated tender a validated position. We will never know why he did not report his suspicion to the employer or the Council Committee and indeed the bribery allegations against the member until much later.
4.3.13 Further by 16th May 2006, a recommendation and decision by SCC was taken to validate the Auto Winches' tender and so it makes no sense why the witness (Mr Gavidi) waited till August to properly register a complaint against the member on a bribery allegation that occurred in 1st February 2006 as he already knew the direction SCC wanted to take with this (invalidated) tender.
4.3.14 Regardless of the process involved in moving the Council and its respective Committees, where such a serious allegation is concerned, where by May 2006 when the decision appeared to be in favour of the Auto Winches in validating the tender, I cannot see any good reason why Mr Gavidi could not come forward straight away and take steps to properly investigate the whole aspect of tender award to Auto Winches as he was in a very prominent position and had direct knowledge of the bribery allegations. If this witness was truly concerned and considered this a serious matter, nothing should have stopped him to invoke investigations albeit the starting point of this investigation would have stemmed out of the bribery attempts made by Mr. Chand. This of course never happened at the material time.
4.3.15 During cross-examination, Mr Krishna also pointed out that it was Memorandum dated 20th July 2006 marked as "Exhibit No. 15" that was sent to the Chairman and Members – Tender Committee that instigated investigation as to why Auto Winches was given the tender award which was originally disqualified.
4.3.16 While this Memorandum talked of "better approach" and "controversy" on the issues raised by the lawyers of certain dissatisfied bidder of the tender, nowhere in the letter alluded to any corrupt practice by the member, being at the heart of the decision-making process that influenced the decision to award the tender to Auto Winches.
4.3.17 Therefore even when this 20th July 2006 Memorandum was drafted and sent to its recipients by the Town Clerk, the allegations against the member for attempted bribery were not disclosed therein. It is not clear where Exhibit No. 14 fits in all this which is an excerpt from the Minutes of the Tender Committee held on same day at 11.00 am that mentions the allegations of bribery attempt made by the member in the said Minutes.
4.3.18 Indeed it is on 15th August 2006 that the witness admitted he penned out a written allegations to the Chairman Investigation Committee on Bribery relating to the incident of 1st February 2006 after the Tender Committee meeting held on 20th July 2006.
4.3 Union's evidence
4.4.1 I noted that the member, Mr Chand stated he had visited Mr Gavidi at his residence at Robertson Road where the time is unknown as this was not established through the member's evidence. He said and I quote:-
"This was in regards to the towing contract of which was currently used by Easy Bula Towing and I knew Simon Shankar of Easy Bula and he requested me to ask Deputy Mayor Mr Gavidi as to why Auto Winches tender was invalidated for the towing services for the Council. Then I visited Mr Gavidi at his residence at Robertson Road" (at page 21of the transcripts)
4.4.2 There is only one such visit admitted by the member. He told the ERT that he was not sent by Auto Winches to bribe when he was put the question whether Auto Winches sent him to bribe Mr Gavidi where he responded: "No, since I was an ex-police officer, bribing is a very serious offence I would have known in that instant and I would not bribe anybody".
4.4.3 It concerned this ERT that no evidence was presented from the either side why the member wanted to question Mr Gavidi regarding the invalidated tender after it was opened on 1 February 2006 when clearly he was not present nor he had any direct involvement in the entire tender process. There was no attempt made by Mr Lajendra to show what was the member's personal interest and gain to see that Auto Winches was awarded the tender. Surely it begs the question, why would anyone try and benefit anyone else through a bold step of bribery attempt on their behalf unless they stand to gain something, particularly by putting their job on the line. However, the fact that the member did admit that he had visited Mr Gavdi to question in relation to the outcome of the tender process still does not substantiate that he offered the bribe as there is absolutely no way of knowing what truly transpired on that day.
4.4.4 The member also said that he only came to know of the allegations that he attempted to bribe Mr Gavidi when he read a Fiji Sun article dated 8th August 2006 as he received no communication from the employer on this issue. Interestingly I note that Mr Gavidi in fact lodged his formal complaint on 15th August 2006 which is surely after the newspaper report had come out. This is probably the threat of legal action the member attempted to highlight that the newspaper article must have brought out against SCC that forced the employer to look into the allegations with a much serious note.
4.4.5 Further there is evidence from both Mr Gavidi and the member that they knew each other very well in a personal and professional capacity where Mr Gavidi stated in his testimony that: "... Mr Chand is a close friend of mine still he is friend of mine...".
4.4.6 The member also told the ERT that: "Since in my towing filed for the last 6years, I came across a lot of instances when I towed vehicles which may belong to a relative of someone who knew Mr Gavidi and I usually call him on his cell phone that somebody vehicle is being towed and they always ask if they can be referred to Mr Gavidi so they can accept part payments".
4.4.6 It is not difficult to note the vast difference in position and power held by the two gentlemen at the time they were connected with SCC. Evidence provided by the member and Mr Gavidi indicated that the friendship extended to both gentlemen discussing work-related matters outside the parameters of SCC and the fact that Mr Gavidi entertained Mr Chand at his residence and took phone calls despite the member being in a much junior position at SCC clearly shows that they had sufficient basis to discuss anything.
4.4.7 To the ERT, member's admission of meeting with the Deputy Mayor for unrelated reason from the bribery allegations shows he was confident enough to take responsibility for visiting the Deputy Mayor but as he had explained at page 2 of the Investigation Report dated 29th September 2006 (which is marked as "Exhibit 21") it was not to bribe Mr Gavidi. He admitted the same before the Tribunal. ERT also examined the Report carefully and it is true that he appeared to have admitted to the Investigating Committee that he should have followed procedure and not have made the queries in regards to the invalidated tender but at no time I found in the evidence presented to me that he admitted bribing the Deputy Mayor as alleged by the employer.
4.4.8 The member also admitted that he rang Mr Gavidi on his mobile phone but in relation to seeking his guarantee for release of a vehicle that was purportedly towed that belonged to a relative of Mr Gavidi. The witness, Mr. Gavidi stated there was no relative involved and at page 3 of the investigation report (Exhibit No. 21), the counsel for the employer stated that the list in SCC's possession did not have the name of the relative he was alluding to and so the call was in relation to the bribery allegation.
4.4.9 The member denied that the call was to bribe Mr Gavidi for the second time in the same day and maintained he called to enquire and seek guarantee of the Deputy Mayor when his relative asked for his name although it was established that this is not a usual practice of SCC.
4.4.10 However, it was not established whether this practice was invoked any time in the past, otherwise why would anyone knowing the usual practice call the Deputy Mayor who accepts the call (and admit to this during the investigation by SCC and then in the ERT) when he would know it is against the established practice of SCC to give guarantee to relatives. Besides, SCC did not react to the member admitting that he telephoned Deputy Mayor to bend an important rule of the employer in terms of allowing him to place guarantee on relatives when this is not the usual practice.
4.4.11 Instead, SCC regarded Mr. Chand's explanation to be false and accepted Mr Gavidi's version that the call was to bribe him. Indeed the telephone call could have been for any reason. It is then non- issue if the person whose car that was allegedly towed turned out to be a relative or not. If the member admits he called but not to bribe, then that can also be a possibility. We cannot know for sure.
4.4.12 Judging from the conflicting evidence as to the reason the member visited Mr Gavidi casts doubt as to what truly transpired on that day.
4.4.13 It is possible Mr Gavidi's account of bribery allegations is the truth as the member is not denying he did not visit Mr Gavidi.
4.4.14 Or it is also possible that the incident of bribery did not take place and the member is telling the truth, otherwise why would he admit visiting Mr Gavidi at all.
4.4.15 Clearly in the absence of any witness or evidence to shed light as to the meeting or conversation that took place on 1st February 2006 between the two men, it really boils down to Mr. Gavidi's word against the member in terms of the "bribery" allegation. After all, the visit had happened, the member admitted to the visit (which appears to be a normal occurrence based on their friendship) and therefore the visit could have happened for umpteenth reasons.
4.4.16 Consequently, this Tribunal is concerned why the employer chose to believe the Deputy Mayor when there was no concrete proof or witness relating to the bribery allegations.
4.4.17 The member also said he did not have the amount of money alleged to have been bribed with. Employer did not present any evidence before ERT how the member proposed to pay Mr Gavidi as to the alleged bribery sum – first $1000 and later $4000. The ERT did not hear whether the employer had collated any evidence in regards to this in the course of their internal investigation or had any evidence that gave indication that even though he had no money on him per se, there was strong evidence that he was going to pay on behalf of a third party. After all this is a bribery allegation, exchange of money is a central component to establish the intention to bribe.
4.4.18 To this ERT, so far all the evidence is so weak that it does not concretely establish that visit or the call had to do with the bribery allegations, particularly if there is no recording of the mobile call to prove otherwise. Again I must reiterate, it is not for me to determine that bribery allegations are with merits other than to infer whether it would have been sufficiently so serious that it amounted to a gross misconduct as a "justification" to allow a reasonable employer to action summary dismissal against the member based on what the employer had before them as reasonable proof of the crime.
4.4.19 Whist I agree that a bribery allegation is indeed a very serious crime, no employer is entitled to cast a "guilty" verdict unless there is sufficient proof before them. So far, the evidence before me does very little to establish any real basis for "bribery allegations". Everything is so circumstantial with no real proof. As such, I do not see the much needed foundation the employer requires to prove their case where substantive allegations of termination for gross misconduct is concerned.
4.4.20 In the absence of any reference to employment contract between the parties to understand its express or implied terms and conditions relating to such offence (gross misconduct), I am relying on Section 33 of the ERP which explicitly requires the employer to state reasons for on-spot, or instant or summary dismissal. This provision places a burden on the employer to show cause as to why they took the most drastic of all steps to terminate the member with immediate effect when there could have been alternatives such as further suspension pending a police investigation. After all, the member was already suspended with half pay from 21st August 2 as per the Memorandum by the Employer with subject matter stated as "Suspension of Duties" and which is marked as Exhibit "No. 20".
4.4.21 I also find that there was no reason why any police investigation could not have assisted the employer's position to build onto their internal investigation and the suspension in the meantime maintained. After all this was the Investigating Team or Committee's first such recommendation at page 4 of Exhibit marked as "No. 21". This would have been a stronger basis to suggest that the police investigation had also given the employer the particular edge that was missing from their own investigation if, for argument sake, the police found some evidence to sustain the bribery allegations.
4.4.22 The justification that the alleged offence was a gross or serious one is also established as to how an employer reacts to the offence committed by the employee. A police investigation would have showed that the employer was serious to weed out corrupt practice and that they had taken serious steps to fix the problem but despite police investigation was one of the Investigating Committee's recommendation, this was completely ignored.
4.4.23 In addition, if the member was criminally charged, it would have then placed the member in a difficult situation to prove that the action taken by the employer to terminate was baseless and unwarranted.
4.5 Is there justification for terminating the member on the strength of evidence?
4.5.1 I am not one to condone any allegations pertaining to malpractice, corruption or indeed bribery. Such allegations in workplace is without doubt serious and when anything is regarded "serious" it must be approached with caution, keeping in mind the policies of the employer, the criminal element, and reputation of the employer and in turn, not compromising the reputation and dignity of the alleged employee without proof or evidence vis-a-viz his/her right to defend or to be heard.
4.5.2 Therefore one has to ask two questions in this instance:-
Therefore, why was this matter not reported to police for any investigation as contained in the "Exhibit marked as No. 16 in paragraph 5.2 which appears to be the Motion substituted on the day:
5.2 "In the event there is evidence of fraud, corruption, bribery uncovered by the investigation relating to the above employees and Councilors, then the matter to be forwarded to the Police for their action" (my emphasis).
4.5.3 Mr Gavidi's argument that he was trying to save his friend from losing his job or him being human and reacting late only tends to weaken his position that he did not take the allegations seriously at the material time it occurred or that he did not consider it serious enough to approach this issue in terms of the policies of the employer. Or simply, there is truth in member's explanation that he never offered any bribe. All can be possibilities.
4.5.4 The lack of employer's interest to ascertain why the allegations were reported late and whether the police investigation would have made a difference on the employer's internal findings indicates that they took one isolated incident to carry out the summary dismissal. I find that there was no real merit in the bribery allegations as it was only circumstantial and one person's word against the other.
4.5.5 I am also of the view that late reporting by the Deputy Mayor of such nature of allegations that the employer regarded as a "gross misconduct" should be treated as the employer waiving their right to terminate the employment of a worker where they have failed to action within a reasonable period of time.
4.5.6 Simply put, it is reasonably expected to report the matter following the Deputy Mayor having knowledge of the alleged "gross misconduct that occurred on 1st February 2006". Not sometime five months later without disclosing or discussing or taking any action in consultation with the employer as to the severity of employee's actions.
4.5.7 Therefore it may be assumed that if the employer allows a certain period of time to pass without reacting (certainly in my opinion, five months qualifies under this concept), the misconduct then was not sufficiently serious to justify termination of employment, quite apart from the fact that the evidence is likely to disappear or be questionable if only based on circumstantial facts. This is prejudicial to the alleged party who is put to unnecessary demand to prove his/her innocence when the alleging party is not responsible enough to take the bribery allegations seriously and reporting straight away.
4.5.8 Further, I am not convinced that the real reason why the member was terminated centered only around the incident of "1st February 2006 - bribery allegations". Mr Gavidi's evidence showed that he was clearly upset when the tender process pertaining to towing services that was invalidated on 1st February 2006 but was later validated by the Committee in charge of the Tender who considered the cashier's explanation that the cashier erred in accepting the right deposit that led him to suspecting that there was some influence by the member in all this and this is when he really spoke up on the bribery allegations.
4.5.9 A right thinking person will understand that this member was terminated not simply for the reason he purported to bribe the Deputy Mayor as stated by the employer as their main reason to terminate Mr Chand but also in connection with the Deputy Mayor' belief and suspicion that he influenced the decision of the Tender Committee somehow to validate the Auto Winches tender which fell short due to incorrect tender deposit.
4.5.10 If that is the case, the employer has again failed to clearly lay out their real reason for terminating the member and establishing the extent of his involvement in the whole process of validating the tender to Auto Winches when evidence points out that he had nothing to do with the Tender Committee's decision.
4.5.11 The question that arises is whether he was unfairly singled out on the Deputy Mayor's beliefs that he was the influencing factor in validating the Auto Winches tender which seemingly went through various process that reflected a bad practice by SCC when they took a decision to validate a tender that was initially invalidated. It also begs the question why anyone else was not taken to task such the Finance Director who was responsible for the decision-making and not the member.
4.5.12 The terms of reference for investigation as contained in the employer's Exhibit marked as "No. 17" (Memorandum dated 31st July 2006 regarding investigation into Award for Tender for Towing to Auto Winches) extended beyond the bribery issue where the management who were part of the Tender Committee decision were also to be investigated. The general terms of reference in Exhibit 17 indicates:
"Within this context, the matters for investigation are:
(1) Why the Management disregarded the Tender Committee decision in the disqualification of the subject tender and went ahead and evaluated the bid proposal and subsequently awarded the towing service to Auto Winches.
(2) The unprofessional conduct of the enforcement Officer - Towing Mr. Ravin Chand for causing allegation of bribery towards the awarding of the tender."
4.5.13 I had no evidence before me that the investigation findings in regards to the terms of reference No.1 above, the member was a "influencing factor" as part of the management in the decision making process.
4.5.14 Further, where the unsigned statement of Mohammed Sahid, owner of Auto Winches tendered and marked as Exhibit "No. 19" is concerned, this is no real evidence either. Mr Krishna had a valid point when said his objection made no difference or cast any doubt on the truth as it demonstrated what sort of evidence the employer had to substantiate the reasons for bribery. This unsigned statement was not mentioned in the findings of the Investigation Team as per Exhibit marked as "No. 21" but in the employer's Memorandum dated 21st August 2006 it is mentioned therein although we cannot tell whether it was signed by Mr Sahid or not. But, I agree if such was the evidence that led to Mr Chand's termination, then the employer has again showed lack of credible and reliable evidence to justify termination.
4.5.15 While member's representative did not tender in any evidence, I note as part of the Member's preliminary submission dated 8th January 2009 (marked as "Annex II"), there is a signed letter by Mr Mohammed Sahid that denies any involvement of the member in colluding or bribing the Deputy Mayor. Having said this I cannot treat either evidence with value as this evidence was not tendered during the hearing although the ERP allows me discretionary powers to accept and admit evidence as ERT thinks fit [section 231(1) of the ERP]. In that sense, all I can conclude is that this evidence (signed letter) supersedes any unsigned statement of Mr Mohammed Sahid.
4.5.16 Employer also presented no evidence of any records or minutes of the interviews done with the member by the Investigating Team on at least three said occasions [Monday, 28th August 2006, Friday, 8th September, 2006 and Tuesday, 19th September, 2006] other than their version of what is contained in the "Findings of Investigation Team – Allegation of Bribery – Ravin Chandra" as per Exhibit marked as No. 21.
4.5.17 If it was recorded and shown to the member, he being a former police officer would have understood its significance and signed off his statement recorded at the material time and it would have helped the ERT to understand what sort of evidence the Investigating Team had to base their decision other than their "summing up" of the interview in one report.
4.5.18 Further, ERT was not presented with evidence whether any other staff member of SCC was also investigated and taken to task where the terms of reference for investigation contained in employer's Exhibit marked as "No. 17" is concerned, especially those management level staff involved in the tender decision-making process. If only the member was terminated arising out of the findings of this investigation, then the entire reason for termination is tainted with doubts as I cannot ignore that it was the issue of tender as admitted by Mr Gavidi that led to any investigation.
4.5.19 I am thus inclined to ponder that the member feeling he was "...a victim of all allegations..." as per his letter to the Town Clerk (at paragraph 3 of the Exhibit marked as No. 23) may have some merit. I was able to comprehend his position when he was posed the question by the counsel for the employer in regards to this particular paragraph where he was supposed to have admitted the bribery allegation when he had stated: "why shall I jeopardize my career and approach Deputy Mayor on somebody else behalf". As I understood, through this statement the member was trying to convince Town Clerk that he had too much to lose and that, why should he jeopardize his job for a third party and not for his gain. I do not see he was admitting the allegations, but stating he was made a victim of "all allegations", which clearly centered around both, the outcome of the tender and not just the bribery allegations of February 2006.
4.6 Other reasons for termination?
4.6.1 This Tribunal further notes that there appears to be an article published in the daily newspaper, "The Fiji Sun" on 8th August 2006 that was not part of the evidence before the ERT other than a mere mention in the Preliminary Submission of the Association filed on 8th January 2009 and also came out through an undated letter by the member which also forms part of the Employer's Exhibit marked as No.23".
4.6.2 I understand the impact of such publicity would require any employer to act and in turn, I note the member penned out his position or defence against the bribery allegation where he pleaded in the letter to have the matter reported to the police so that he was allowed an opportunity to clear his name.
4.6.3 Suffice to note, this letter was written to the Town Clerk/CEO which clearly is not a response to the investigation teams report as per Exhibit marked as Nos. 21 and 22 as proposed by the counsel for the employer and which was maintained by the member to have been written in regards to the newspaper article as stated in paragraph 1 and I quote: "In response to the article published in the Fiji Sun on 8th August 2006..."
4.6.4 I cannot conclude with certainty what prompt the employer to finally dismiss the member, the unfounded bribery allegations that was entirely based on circumstantial evidence or suspicion of the Deputy Mayor that the member influenced the Tender Committee or the newspaper article also added some weight to the allegations. But one thing is certain, if, the employer had treated this matter as a serious one, it would have expedited the internal investigation that was in place from 27th July 2006 when the Council Resolution was adopted to initiate an investigation.
4.6.5 The employer did not also use this time to seek police intervention to come to a reasonable decision which was also requested by the member. Evidently, the letter by the member in the interim was not given any due consideration by the Town Clerk and on 21st August 2006, the employer proceeded to suspend the member from his duties with immediate effect and on half pay as per Exhibit No. 20.
4.6.6 He was asked to attend a Disciplinary Committee on 28th August 2006 and the ERT heard no evidence whether this took place and if did, what transpired therein. After almost two months, on 29th September 2006 the internal findings were made available to the member for his response through his Association.
4.6.7 It is my final conclusion that the late reporting of the bribery allegations and no police intervention at all points to one obvious fact that the Deputy Mayor did not report this matter to the police because he did not regard it serious on two occasions: –
4.6.8 It makes no sense for the Employer to simply act on the Deputy Mayor's words alone to terminate the member which in fact shows unilateral decision-making without allowing the member his right to be heard, particularly since his integrity was in question and he was not given an opportunity to clear his name. All he asked for was due process through a police investigation.
4.6.9 This is unfair and unjustified whilst also I deem this to be insensitive approach on the part of the employer that inflicted injury to the member's emotions and dignity who had served the employer for more than a decade. Simply put, in any context, he deserves to be discharged with dignity so that he was able to channel any allegations apportioned against him by the employer with a sense of acceptance and remorse if justified.
4.6.10 Here, the evidence was so weak and circumstantial that any reasonable employer would not have proceeded to terminate this worker on one man's words alone. He was denied his request for an independent police investigation. To live with that for three or more years would be a blow to anyone's confidence and self-worth which no employer has the right to inflict on their long-standing officers without a good and justified cause.
4.6.11 It is then this ERT's final assessment of the entire evidence which indicates that the termination of Mr Chand was a result of:-
4.5.20 This can be seen to be unfair and unjust as I have reiterated that I have no real basis before me to accept that the bribery allegations was with merits at the time it was committed and eventually reported that it amounted to gross misconduct under section 33(1) (a) of the ERP, hence it provided a justified ground to the employer to invoke summary dismissal.
4.7 Is the Due Process an issue in this Dispute?
4.7.1 The Master Agreement used to terminate the member was later explained by the employer through their closing written submissions as to what Section VI, Clause (e) (i) of the Master Agreement entailed. This is clearly a case of summary dismissal with a cause. Notice is not required under section 33 of the ERP if there are established grounds pursuant to the five listed grounds therein, and in this case s33(1)(a) is applicable as per employer's grounds for dismissal.
4.7.2 Any dismissal must be is backed with a fair reasoning and on the merits of the evidence against the alleging party, otherwise an employer will simply find a situation and send workers or employees home at any time whether there is a cause or not.
4.7.3 While the burden is on the employer to prove that they accorded just and fair due process before or at the time of the termination, it is equally important that the member understand such process and mutually agree to it, through an employment contract (individual or Master/Collective). But more significantly there must be display of good faith at all times in finding an amicable resolution so as to avoid the member facing harsh penalties without any justification unless it becomes absolutely necessary. Principle of good faith upon which ERP is premised, cuts both ways, and in this instance, I cannot avoid but state that the Association failed to assist their member in ensuring his interests were protected under the purported Master Agreement or indeed under the ERP 2007, which I shall explain later.
4.7.4 But first, I shall explain that I have some indication as to "due process" prior to summary dismissal being invoked that was put forward for the Tribunal's consideration by the employer's counsel in terms of Exhibit marked as "No. 20, 21, 22 & 24". The ERT is not sure if this was a requirement in the Master Agreement.
4.7.5 What concerns the Tribunal most is that the Association representative, Mr Krishna did not attempt to clarify what role the Association played in all this when they had notice of their member, Mr Ravin Chandra being on the verge of facing the most severe of all penalties, that is, "termination forthwith".
4.7.6 Did the Association appeal to the employer to re-consider summary dismissal and substitute a lesser form of penalty such as suspension pending a police investigation; here, my guess is that they did not make any such attempts to assist their own member. Undoubtedly there was lapse of almost twenty days before the member was eventually terminated on 19th October 2006. No one knows what the Association did in the interim to assist its member in seeking reinstatement from suspension until when the Town Clerk took action to summary dismiss Mr. Chand.
4.7.7 All I can say is that the SCCSA failed in ensuring that their member was protected adequately and accorded fair due process just before he faced summary termination. I cannot stress enough that the "principles of good faith" does not stop after any Collective or Master Agreement is secured between an employer and the representing Union or Association. It extends beyond the signing and execution process and constantly places both parties under immerse pressure to apply good faith at all times and this is not only contingent on the employer but also on the Union/Association.
4.7.8 In my view the Association's failure to present any evidence before the ERT that they responded on behalf of their member shows that the Association failed in its duty of care towards the member by not facilitating the due process till the end. At least they should have responded or written to voice their alternative proposal which should have been to invoke police investigation first before taking any steps to terminate the member.
5.0 Is there a breach of Employee's rights under the law?
5.1 The employer's right to dismiss summarily depends upon a breach by the employee of the express or implied terms of his contract or Collective/Master Agreement as a contract of service imposes upon the parties a duty of mutual respect [as per William –v- Racher (1974) ICR 428].
5.2 Master Agreement was not presented to the Tribunal although there is some indication that it relates to summary dismissal of the member. Section 33(2) of the ERP 2007 requires the employer to lay out reasons for termination in writing when invoking summary dismissal.
5.3 The employer did not lay out the relevant details as to what constituted a breach of Section VI, Clause (e) (l) of the Master Agreement in terms of the summary dismissal in their letter of termination. Since this is an allegation of "gross misconduct" which was used as a reason for summary dismissal, the Town Clerk when he wrote to the member on 19th October 2006 did not give reasons for termination under section 33 of the ERP where if a worker is guilty of gross misconduct, he/she is entitled to be given reasons pursuant section 33 (2).
5.4 There is no contention that the Employer viewed this as a gross misconduct as per their Preliminary Submission where they have stated that "SCC was justified in terminating the employment of Mr. Chand. He was guilty of gross misconduct". If this was the case, then the employer having required to provide reasons for "gross misconduct" under the statute at the time the member was terminated, has breached section 33(2) of the ERP.
5.5 Even if one is to understand that the Town Clerk tried to give reasons via declaring the member guilty of the said three offences he stated in that letter, this fails to stand as the reason(s) for the termination.
5.6 In the case of Stapp v The Shaftesbury Society [1982] I.R.L.R 326 it was noted that "although every case turns upon its own facts, a single act is less likely to justify summary dismissal that a series of action; the quality of the breach is what counts, not the consequences flowing from it, and the more serious the breach more likely it will be held to justify summary dismissal. The final verdict of the employer without initiating any police investigation and /or allowing proper legal system to determine the guilt or innocence of the member is no doubt a unilateral decision taken by the employer to summary dismiss the member without due consideration of member's past employment record, years of service, previous offences, if any, or certainly overlooking that they had insufficient and any credible evidence based on one person's words against another. Not to mention, him being denied one request to clear his name through an independent investigation via the police. To the ERT there was no lawful or probable basis for summary dismissal.
5.7 The employer may have had a substantive reason to initiate disciplinary process as evidently bribery allegations are not to be viewed as a trivial matter. And because it is naturally a serious offence to be alleging against anyone, the employer had extra burden to see it was accorded fair and impartial process for investigation. Thereafter, it was open to the employer to decide the type of disciplinary action and penalties as per policies and employment contract in place. However to just take one person's word and not consider the other's plea for police investigation that would attach stigma and taint a person's character and on top of that adversely affect his future livelihood is not a fair play. The member is still without a job and he has endured almost three years without a closure to the purported allegations.
5.8 Minor procedural inadequacies can be overlooked as Courts in New Zealand have recognized that most employers will not be able to provide perfectly fair procedures for dismissing employees [see: BP Oil v NDU [1992] 3 ERNZ 483 (CA); and NZ Food Processing IUOW v Unilever New Zealand Ltd (1990) 1 NZLR 35]. However, here not only a person's livelihood was at risk through loss of his job, but also to live with (bribery) allegations that was not properly investigated by the appropriate and mandated authority such as the police and the member not given a chance to clear his name, makes it hard to justify the actions of the employer.
5.9 The employer, while I find it took certain reasonable steps to accord due process for investigation into the bribery allegations, it failed to establish to this ERT that there were merits in the allegations which was only based on one man's words against another.
Decision
The hearing of this case was done some three and half years after the termination and taking into consideration of all circumstances, the Tribunal makes the following decision and orders:-
DATED at Suva this 12th day of September 2011.
Legal Tribunal
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