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Fiji Public Service Association v Fiji Revenue and Customs Authority [2011] FJET 7; ERT Dispute 25.2010 (19 April 2011)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

ERT Dispute No. 25/ 2010

BETWEEN:

FIJI PUBLIC SERVICE ASSOCIATION FOR MS. NILAM RANJANI
THE UNION

AND:

FIJI REVENUE AND CUSTOMS AUTHORITY
THE EMPLOYER

Appearances:
Mr. D. Nair for Ms. Nilam Ranjani
Mr. B. Solanki for FRCA

DETERMINATION OF THE TRIBUNAL

______________________________________________________________________________

The Employment Relationship Problem

1] This employment dispute is over the alleged failure of the employer to remunerate Ms. Nilam Ranjani in terms of acting allowance for the period 18th December 2008 to 4th January2009 in respect of duties performed as Team Leader, Asycuda which is discriminatory, unreasonable and unfair;

2] The alleged actions of the employer in denying Ms. Ranjani the legitimate expectation and entitlement to receive appropriate remuneration for duties performed at a higher position which entails the payment of acting allowance; and

3] The alleged breach of the grievor's terms and conditions of employment as provided in Clause 23.0 of the Collective Agreement and further contravened Sections 75, 77(1)(b) of the Employment Relations Promulgation 2007.

4] Ms. Ranjani is represented by the Fiji Public Service Association and it has demanded that the employer compensate Ms. Ranjani in terms of acting allowance for the period 18th December 2008 to 18th January 2009 and to refrain from discriminating her by unduly ceasing her acting allowance only to justify the non – continuity in her acting appointment.

References

5] For the purpose of this decision:

- Ms. Nilam Ranjani shall be referred to as ("NR")

- The Fiji Public Service Association shall be referred to as ("FPSA")

- The Fiji Revenue and Customs Authority shall be referred to as ("FRCA")

Background and Evidence

6] The FPSA submits that NR was appointed to act as Team Leader ASYCUDA from 23rd October 2007 and that acting continued through 2008 and 2009. However, at the end of each year, the employer terminated the acting appointment for two weeks to justify non continuity in the acting appointment, despite the fact that the worker continued to perform the duties of the post of Team Leader. Copies of the acting appointment letters which confirm the break in the acting appointment were attached to the written submissions of the FPSA and showed the acting dates to be the following –

23. 10. 07 to 04. 12. 07

22.01. 08 to 18. 05. 08

19. 05. 08 to 18. 08. 08

19. 08. 08 to 19. 11. 08

19. 11. 08 to 18. 12. 08

05. 01. 09 to 04. 04. 09

05. 04. 09 to 04. 07. 09

7] The FPSA further submits that FRCA by letter dated 22nd December 2008 informed NR that her acting appointment would cease with effect from 18th December 2008, and a day letter FRCA wrote another letter to NR informing of her appointment as acting Team Leader Asycuda with effect from 5th January 2009 to 4th April 2009 and that was further extended to another three months.

8] The Tribunal agrees with the FPSA that FRCA acted unreasonably when it denied this worker her entitlement for remuneration in terms of acting allowance for duties performed at a higher level. Going through the submission, it can be seen that this has been an ongoing practice as evident in the letter dated 1st September 2008 granting retrospective approval to the following acting periods –

23. 10. 07 to 04. 12. 07

22. 01. 08 to 18. 05. 08

9] The Tribunal sees that the dispute raised by NR is adequately covered by the Collective Agreement and the HR Directions of FRCA and the fact that FRCA has not made any submission on the substantive issue could confirm to the Tribunal that FRCA has breached the Equal Employment Opportunities Provisions of the Employment Relations Promulgation 2007.

10] FRCA argues that the dispute raised by NR must be considered in light of the Administration of Justice (Amendment)(No. 3) Decree 2010 as NR cannot now challenge the decision of the Chief Executive to revoke her acting allowance as Team Leader Asycuda from 18th December 2008 to 4th January 2009.

11] According to FRCA, the decision of its Chief Executive to revoke the payment of acting allowance basically does two things:

(i) Alters or amend the terms and conditions of employment of NR (section 23B (1) (ii) of the Decree); and or

(ii) Changes the terms of services including the remuneration of NR (section 23B (1) (iii).

12] FRCA then went on an attempt to justify its position that the proceedings before the Tribunal be terminated since all prerequisite elements as contained in section 23B of the Decree have been satisfied by the employer.

13] The Tribunal does not agree with the position taken by FRCA; it should have made submissions on the substantive issue and explain the reasons why it deviated from the provisions of the Collective Agreement and the HR Directions.

14] The dispute here is the failure by FRCA to comply with the subsisting terms and conditions of employment of NR which is provided in the Collective Agreement and the HR Directions, that is on the payment of acting allowance to a worker when the worker is required to undertake additional responsibilities of a higher position that qualifies for payment of acting allowance. The employer FRCA has not altered the provisions of acting allowance as provided for in the Collective Agreement and HR Directions, as other workers who are acting on higher positions have been paid acting allowances.

15] The omission by FRCA to make submissions on the dispute as reported is fatal to their case as what NR is challenging here is the realization of her rights under her contract of employment, Collective Agreement and HR Directions. The lady is entitled to those rights, for equal employment opportunities and non discrimination are fundamental rights in the workplace and the subject of one of the core International Labour Organization Conventions ratified by the Government of Fiji, and the cornerstone of the "Decent Work Agenda."

16] In view of the above, the Tribunal makes the following decision:

(a) Orders that FRCA compensate Nilam Ranjani in terms of acting allowance for the two weeks from 18th December 2008 to 4th January 2009; and

(b) Urges FRCA to observe the Equal Employment Opportunities provisions in the Employment Relations Promulgation 2007.

DATED at Suva this 19th day of April, 2011.

Sainivalati Kuruduadua
Chief Tribunal