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Singh v Land Transport Authority [2012] FJET 19; ERT180.2011 (20 November 2012)

IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE EMPLOYMENT RELATIONS TRIBUNAL


ERT Grievance No 180 of 2011


BETWEEN:


VIMAL SINGH
Worker


AND:


LAND TRANSPORT AUTHORITY
Employer


Counsel: Mr D Nair, for the Worker
Ms F Kinivuwai and Mr E Delana for the Employer


Date of Hearing: Friday 13 April 2012
Monday 19 June 2012
Thursday 20 September 2012


Date of Judgment: Tuesday 20 November 2012


DECISION


TERMINATION OF EMPLOYMENT – Section 194(5) Employment Relations Promulgation 2007; DISMISSAL FOR MISCONDUCT – Section 33 Employment Relations Promulgation 2007


Background :


  1. This is a matter that has been referred to the Tribunal in accordance with Section 194(5) of the Employment Relations Promulgation 2007, being a grievance that has failed to resolve at mediation.
  2. The grievance of the Worker relates to his summary dismissal in employment on 10 November 2011, following an investigation conducted by the Employer into the Worker's conduct.
  3. The investigation undertaken by the Employer concerned allegations of bribery and abuse of office, levelled against the Worker in and around August 2010. The Worker was suspended from duties on 14 September 2010, to coincide with the commencement of that investigation.
  4. As a preliminary matter to these proceedings, I ordered that the Employer provide to the Worker, a copy of the Investigation Report that formed the basis of the termination decision.
  5. It should also be noted that due to the devastating floods that took place in the Western part of Viti Levu in April of this year, that this did disrupt the access and availability of witnesses to these proceedings. The timetabling and further liaison with the parties for that reason required the conduct of this matter over several days and over several months.

The Worker and the Issues that Gave Rise to the Termination


  1. The Worker had been engaged with the Land Transport Authority ("the LTA")(" the Employer") since March 2003, initially as a Traffic Inspector and later as a Public Service Vehicle (PSV) Officer at the Nadi Office.
  2. On 12 August 2010, a Prosecutions Officer engaged at the Nadi Office of the Employer, received a telephone call from a member of public who had applied for a Road Surface Licence (RSL), in effect claiming that he was being forced by the Worker to provide him goats in exchange for having his RSL licence approved.[1]
  3. As a result of that complaint made, the Employers representative who took that call, recommended that the member of public, attempt to capture the next transaction by way of photographic evidence and provide the Employer the same.
  4. A transaction was recorded by way of photographic evidence on 12 August 2010, following which a statement of evidence was taken from the complainant licence applicant.
  5. On 17 August 2010, a brief report of this incident, that included a witness statement and photographs of a goat being loaded into a utility van, was forwarded to the General Manager Finance and Administration.[1]
  6. Arising from that report and coinciding with the contemporaneous complaints received through the Offices of the Prime Minister and Minister for Works, Transport Energy and Public Utilities, the Chairman of the LTA Board instructed that a more comprehensive investigation of the conduct of the Worker be undertaken.
  7. On 14 September 2010, the Worker was suspended on half salary to allow for the conduct of that investigation.
  8. The Investigation Report provided to the Chairman of the Board on 2 November 2010, ultimately gave rise to the laying of five disciplinary charges against the Worker on 30 November 2010.[2] The Worker formally contested those charges by correspondence dated 21 December 2010[3] and in his presentation and response to questions before an LTA Staff Board on 18 March 2011.[4]
  9. On 18 April 2011, Mr Nair on behalf of the Fiji Public Service Association wrote to the Chief Executive Officer of the Employer, expressing concern over the delay as to the Worker's fate.
  10. On 22 June 2011, the Worker referred the prolongation of the matter as a 'grievance', to the Mediation Services Unit, Ministry of Labour, Industrial Relations and Employment, in accordance with Section 200 of the Employment Relations Promulgation 2007.
  11. That grievance was referred to the Chief Tribunal on 30 August 2011, when the matter was not resolved.
  12. During that ensuing period, a further five disciplinary charges were laid against the Worker on 13 July 2011.[5]
  13. On 27 October 2011, Samujh, Legal Tribunal issued directions that the Employer reach a decision in relation to the findings of the Investigation Report within 21 days.
  14. Prior to the determination of those additional five charges, at a meeting of a Staff Board Meeting of the Employer on 8 November 2011, it was determined that

"Considering Part B of the Investigation Report and statements made by the complainants against (the Worker) the six charges and evidence justify grounds for termination ..."[6]


  1. By letter dated 10 November 2011, the Chief Executive Officer terminated the Worker.[7]

Preliminary Observations and Task of the Tribunal


  1. This is a grievance arising out of summary dismissal, insofar as the Worker was terminated in his employment, effective immediately.[8]
  2. It is certainly not, a category of case, where the Worker was terminated immediately in response to claims of misconduct levelled against him.
  3. In fact, on any interpretation of the chronology of events, the Worker had been given 14 months notice that his conduct and suitability as an employee was under scrutiny. By the nature of the allegations levelled against the Worker, he had been given 14 months notice, that if proven to be true, his termination would most certainly come to an end.
  4. Having said that, the fact that the investigation process and the fate of the Worker's status as an employee took 14 months, is most unfortunate. The initial investigation report had been completed 12 months prior to the termination decision being made. It is simply hard to understand, why it took so long to reach a decision in relation to the Worker's conduct.
  5. Against that backdrop, I am being asked to consider the Worker's claim that the termination was also unfair and in breach of natural justice and Chapter VIII, Clause 8.3 of the Collective Agreement that governed the Worker's employment at the relevant time.[9]
  6. In the Closing Submissions of the Worker as Grievor, it is stated that the allegations which formed the basis of summary dismissal (were) not established by the investigation that was caused by the Employer and that the Employer had the benefit of (a) Police report dated 21/09/2010 (that) had cleared the grievor from the allegation relating to him receiving a goat and the suspect, had been warned.[10]
  7. In Further Closing Submissions filed on behalf of the Worker on 16 October 2012, it is claimed that:

"in the event the employer had followed the due process and accorded natural justice to the grievor on the various allegations made against him, then the manifestly harsh and most extreme penalty of dismissal would not have been imposed".[11]


The Evidence before the Tribunal


Mr Neil Eyre


  1. Mr Neil Eyre was the first witness to be called by the Employer. In his capacity as an LTA Prosecution Officer, Western Division, Mr Eyre admits to having commenced a preliminary investigation of the issue in response to a telephone call that he had received regarding the Worker's then alleged conduct. It was the initial allegations taken by Mr Eyre, together with a Statement and photographic evidence received from the complainant, that appears to have been the impetus for a wider investigation into the worker's conduct.[12]
  2. While during cross examination of this witness, Mr Nair sough to create an impression that Mr Eyre had exceeded his authority as an employee when initially undertaking his preliminary investigation, I am not persuaded by that characterisation. In my view, Mr Eyre appeared a very diligent and faithful employee, concerned with the need to act quickly in relation to capturing some evidence pertaining to a serious complaint.

Mr Deve Moce


  1. Mr Moce was appointed the Team Leader of the Internal Investigation Committee, charged with the task of investigating the complaints that had been received against the Worker. [13]
  2. It was Mr Moce's evidence that after receiving the complaints, his Committee contacted the complainants and carried out investigations, by way of face to face interviews.
  3. Counsel for the Employer took Mr Moce through the Investigation Report (Exhibit 4) where he proceeded to explain the methodology that he had adopted and the various pieces of evidence, he was to rely on in reaching his findings.
  4. He observed out of the 14 allegations that emerged from the initial complaints received against the Worker, that six had been established through his investigation.

Mr Ronald Narayan


  1. Mr Ronald Ritesh Narayan is a 35 year old Cattle farmer who confirmed that he had provided a statement to Mr Moce on 14 August 2010, regarding his complaints of being forced to pay bribes in the form of cash and livestock to the Worker, in exchange for receiving a vehicle licence.
  2. Mr Narayan gave evidence that working in concert with his wife, she took photographs of the Worker coming to his property on 12 August 2010, showing him taking a goat in a vehicle.
  3. According to the witness, as well as his complaint made to the LTA, he had made separate complaints to the Prime Minister's Office and the Fiji Independent Commission Against Corruption.

Ms Nina Deo


  1. Ms Deo is the 27 year old partner of Mr Narayan. Ms Deo was shown Folio 11 within Exhibit 4 that contained a statement that she had provided to Mr Moce. Ms Deo was also shown various photographs within that Exhibit that she admitted having taken on 12 August 2010.
  2. Ms Deo identified the photos within the Investigation Report, as ones taken by her, including one of the Worker talking to her husband and another loading the goat into a utility truck and driving away.

Mr Vimal Singh


  1. At the time of hearing, the Worker was unemployed.
  2. In his evidence in chief, the Worked denied having gone to Mr Narayan's house with a Mr Aniz Ahmed, coinciding with the time when he first made application for a vehicle licence. He did admit though, having gone to the house on 12 August looking for a black goat, which he says was required consistent with a religious requirement.
  3. He states that after being shown the goat at Mr Narayan's house, that he was not interested in the animal, as "both cheeks were white (and) one ear was damaged".
  4. He claims that the goat was "taken to one of Ronald's friends place" and "later I gathered and (was) informed that (he was) Ronald's business partner".
  5. He claims that later in the course of a police investigation into the complaint, the police officer asked me to show the house, where it was claimed the goat was taken.[14]
  6. It is a matter of record that at this juncture, I asked that the witness temporarily stand down in order that I could speak to Counsel in relation to the quality of the evidence that was being led. [15]
  7. During the further evidence that ensued, the Worker denied all of the allegations contained within the disciplinary charges levelled against him.
  8. Finally, in response to his termination, the Worker claimed that he had not been given a right to appeal in accordance with Clause 8.2.10 of the Collective Agreement between the Fiji Pubic Service Association and the Land Transport Authority of Fiji. [16]

Other Issues


  1. In the afternoon of the hearing of 19 June 2012, I had understood that Mr Nair was intending to issue subpoenas to compel the attendance of the Investigating Police Office, that he and the Worker had referred to in the course of proceedings, as well as the resident who it was claimed had received the goat on 12 August 2010.
  2. I had extended this opportunity to Mr Nair, for the very purpose of ensuring that the Worker would be given every opportunity to have persons attend the tribunal in order to corroborate his evidence.

Hearing of 21 September 2010


  1. When the matter was recalled for hearing on 21 September 2010, it turned out that no such subpoenas had been issued.
  2. At one point, it was intimated by Mr Nair, that there would be costs of finding the neighbour, given the location, apparently acting as some disincentive for the Worker.
  3. I find this submission extraordinary, given that the Worker had claimed to have taken the Investigating Police Officer to that location. He clearly knew where the location was. It seemed a very simple exercise should he have wished to consolidate his position. In any event he elected not to do so.
  4. Given the deliberate opportunities that I gave Mr Nair to subpoena the attendance of both the investigating police officer who responded to the Worker's complaint of 'spreading false rumours'[17] and the neighbour who it is claimed was the beneficiary of the goat taken from Mr Narayan's property on 12 August 2010, I am right at least in the latter case, in making adverse inferences from such reluctance to do so. (See Jattan v Wati [2011] FJHC 660; McGowan v Chand [2011] FJHC 230; Computech IT Solutions Ltd v Fijian Teachers Association [2009] FJHC93; Naga v Commander, Republic of Fiji Military Forces [2009] FJHC68 and Re A Barrister and Solicitor [1999] FJHC 13.)

Reliance on Exhibit 8 – Letter from Police Station


  1. So that there is no uncertainty on this point. There was no valid reason given for why the investigating police officer to the Worker's 'false rumours' complaint, could not attend these proceedings. The Worker was given four months in order to seek the attendance of that person. For whatever reason, this did not take place.[18]
  2. Instead, Mr Nair seeks to rely on a letter written on the letterhead of the Nadi Police Station by a Station Officer, who himself was not the investigating officer that the Worker refers to in his evidence.
  3. For the sake of completeness that letter reads inter alia:

To Whom It May Concern


This is to certify that Vimal Singh of Nadi Back Road did lodge a report at Nadi Police Station on the 16th day of August, 2010 that one Donald of Malamala is spreading false rumors about him receiving a goat as bribery from him.


Investigation completed and suspect was warned as requested as dispute of purchase of goat and complainant advice to take own lawful action.


Nadi Police Station report number 6625/10 refers.


  1. This is the evidence that Mr Nair relies on for the Worker, when he makes the following closing submissions[19]:
  2. The letter tendered by the Nadi Police Station that forms Exhibit 8, is was it is.
  3. In the first place, it refers to a person named Donald, not Ronald Ritesh Narayan.
  4. Secondly, the letter nowhere states that Mr Singh did not take a goat, nor that this was the finding of the investigating officer.
  5. Thirdly, in no way did that letter clear the grievor in relation to the allegation. The letter makes no reference as to whether any person was interviewed in relation to receiving a goat.
  6. It simply suggests that Mr Narayan may have been warned in relation to the claims that he may have been making, regarding Mr Singh. Though, even on that point, given the failure by the Police Officer the author of that document, to present himself and for the fact that the Worker did not compel the attendance of the investigating officer, leaves me with the view that no such conclusion can be fairly drawn on the unsworn documentary evidence.

Has the Worker Been Denied Natural Justice


  1. Mr Nair for the Worker claimed that his client was denied natural justice during the conduct of the Employer's investigation; because by virtue of the Collective Agreement, he was entitled to cross examine any of the witnesses who had made adverse reports against him.
  2. I am not convinced that this is the case given the Disciplinary Procedures set out within Clause 8.2 of the Collective Agreement.
  3. The Employer did not undertake an Independent Disciplinary Inquiry in accordance with Clause 8.2.4 of the Agreement. The investigation was not undertaken by an Independent person appointed in consultation with the Union to conduct the inquiry.
  4. The conduct of that type of an inquiry is discretionary not mandatory.[20]
  5. Instead the Employer chose to undertake its own investigation. It was free to do that. When it does so though and does in a manner where the Worker is denied full access to the relevant allegations, facts and witnesses that make up the Employer's case against him, it nonetheless does so at its own peril.
  6. In regards to the charges that have been levelled against the Worker and formed the reasons for decision, in the case where no evidence was called by the Employer during the conduct of these proceedings, I have chosen to disregard. Not that the Employer was not entitled to rely on such evidence, particularly where it had obtained written signed statements from the relevant persons, but the fact that it chose not to call such witnesses, in my mind diluted their influence on any decision to be made by me, based on evidence that was available and could have been called. The Worker could have also subpoenaed any person it wished to do so, in this regard.
  7. I nonetheless accept that cases such as this impose large costs on an Employer when seeking to validate its reasons for decision and for a Worker when faced with the unenviable task of proving her or his case. The Tribunal sat in Suva and it would appear that the witnesses, who had earlier given statements to the LTA Investigating Team, were residing in Nadi and Lautoka.

The Reasons Set Out Within the Termination Letter


  1. For the purposes of assessing whether or not the termination in question has been justified or not and whether or not, it falls within the category of case that does not require the giving of notice, I have decided to focus on the termination letter dated 10 November 2011. [21]
  2. That letter sets out 25 reasons[22] as to why the Worker's employment should be summarily terminated.
  3. There are aspects within those 25 reasons that I believe do not necessarily meet the standard of proof that would be required in cases of this type.
  4. In Digitaki v Mobil Oil Australia Ltd[23], the Court of Appeal recognised the need to lift the evidentiary bar in matters of this type, when it restated the long established principle set out by Dixon J in Brigginshaw v Brigginshaw [24]
  5. In that case his Honour stated at p.362:

"But 'reasonable satisfaction' is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."


  1. To that end then, the reasons provided within the termination letter require some further scrutiny.
  2. The disciplinary breaches forming the basis of these reasons, are described as:-
  3. The 25 reasons for termination are in effect, five separate incidents that in turn give rise to five sets of breach of conduct.
  4. The incidents are
  5. Having reviewed all of the materials and submissions before me and having listened to the evidence of the witnesses who were called to give their oral testimony, I find that there is sufficient evidence to conclude that the Worker did:-
  6. In relation to the first conduct, the photographic evidence, together with the testimonies of the complainant and his wife and the failure by the Worker to compel the attendance of the alleged nearby neighbour to provide corroboration that he claims to have had available, leads me to be satisfied that the Worker did engage in that conduct.
  7. In relation to the additional complaint that the Worker did make another call to the complainant demanding the further payment of a goat in exchange for facilitating a licence application, I find accordingly. The evidence of Mr Moce, the Investigating Officer together with that of the complainant is sufficient in my mind, to be preferred to that over the Worker.
  8. In relation to the other incidents set out within the termination letter, my view is that there is insufficient evidence before me, to reach a conclusive view. There are certainly statements that have been provided to the Investigating Officers that set out each of the complaints. It remains the case though, that the Worker did not have the opportunity to test the veracity of those complaints. Yes the allegations were put to him, but he certainly had no opportunity either prior to his termination or in these proceedings, to cross examine any persons who had made such allegations against him.
  9. This he could have done by compelling such persons to give evidence in these proceedings. To that end, arguments of a lack of natural justice being afforded to the Worker cannot penetrate into these proceedings.

Conclusions


  1. In all, I am satisfied to the extent required within Brigginshaw v Brigginshaw, that the Worker did obtain a goat for personal gain on 12 August 2010 and subsequently when that matter was under investigation, made a telephone call to the complainant, demanding a further goat.
  2. Regardless of whether or not the other incidents did or did not occur,[26] l am satisfied at least for the reasons relating to the two conducts that I have identified, that the Employer was justified, particularly after nearly 15 months, in summarily terminating the Worker's employment.
  3. For that reason, the claim of the Worker against the Employer must fail. The matter is dismissed.

Mr Andrew J See
Resident Magistrate

Evidence of Mr Neil Eyre, Prosecuting Officer, LTA that he had received a phone call on [1]2 August 2010, advising of an event that was to occur later that day.

[1] See Exhibit 1 (LTA 01)

[2] See Exhibit 5

[3] See Exhibit 5 (LTA 07)

[4] See Minutes of that Meeting at Exhibit 5 (LTA10)

[5] See Exhibit 7

[6] See Exhibit 5 (LTA13)

[7] See Exhibit 5 (LTA14)

[8] Refer Section 33 of the Employment Relations Promulgation 2007.

[9] It would seem that the submission should be referring to Clause 8.2 of the Collective Agreement.

[10] Refer Paragraphs 3.1 and 3.2 of the Closing Submissions dated 13 April 2012.

[11] See Paragraph 1.55

[12] See Exhibit 1(LTA01)

[13] See Exhibit 2 that set out the Terms of Reference of the complaint.

[14] I will deal with this police investigation later within the decision.

[15] I advised Mr Nair that in the interests of the Worker’s case, that the better evidence in relation to any police investigation would come from the Investigating Officer and the individual who it is claimed received the goat on the day in question.

[16] I reject this evidence. The Collective Agreement makes clear that the Worker had a right to appeal the decision. In an ideal situation the Employer could have included reference to that right within the termination letter. Equally too, the Union who was representing the Worker at that time, could have advised him of that right.

[17] Refer Nadi Police Station reference 6625/10

[18] And clearly even if a request had been made for the issuing of subpoena, it was never followed up.

[19] Closing Submissions dated 16 October 2012.

[20] Note the use of the words “shall if it considers necessary” contained within that Clause.

[21] See Exhibit 5(a)

[22] Though the paragraph numbering gives the impression that there are in fact 26 reasons.

[23] [2008] FJCA 109

[24] [1938] HCA 34; (1938) 60 CLR 336

[25] The evidence in relation to the issue of cash passed to the Worker is insufficient in my view to form an emphatic view on this point. While it may have been the case, I am not prepared to determine that fact, based on the evidence that is available.

[26] My impression on balance would be that they have, as there would appear to be a pattern of behaviour, though this is irrelevant to my decision in this matter.

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