IN THE EMPLOYMENT RELATIONS
TRIBUNAL AT LAUTOKA

ERT Misc. No. 30 of 2011

BETWEEN:

MATAIASI LABAIBURE
MEASAKE TAMANI
SETOKI CEINATURAGA
MOSES GIVAKI
LITIANA NAYAVUSOATA
GRIEVORS

AND

LAND TRANSPORT AUTHORITY
EMPLOYER

Appearances:
Mr. Kevueli Tunidau for the Grievors
Ms. Frances Kinivuwai for the Employer

DETERMINATION OF THE TRIBUNAL

The Employment Relations Problem

1] The grievors were all employed by the Land Transport Authority (LTA) in different capacities and were based at Lautoka and Nadi LTA offices respectively when they were all terminated on 7th January 2011. The reasons for the terminations were the various allegations against the grievors raised by the Ministry of Works, Transport & Public Utilities with LTA.

2] The grievance is the claim by these Grievors that the termination carried out by the LTA was unfair in that it failed to adhere to the clear and express disciplinary provisions of the Memorandum of Agreement 2001 (MOA).

Background and Evidence 

4] This matter came to the Tribunal through a Motion supported by the combined affidavit of the grievors. The Motion was heard at the Lautoka

Magistrates Court and the parties were given time to make submissions with the LTA submitting first its response to the Motion, with the grievors right to reply if needed also given.

5] The LTA through its counsel submits that Mataiasi Labaibure was employed as a Senior Road Safety Officer at the LTA Nadi office; Mesake Tamani was employed as a Public Service Vehicle Officer at LTA Nadi Office; Setoki Ceinaturaga was employed as a Public Service Vehicle Officer at the LTA Lautoka office; Mosese Givaki was employed as a Road Safety Officer at LTA Nadi office; and Litiana Nayavusoata was employed as a Public Service Vehicle Officer at LTA Lautoka office.

6] The LTA further submits that on 20th July 2010 the LTA via a memorandum notified the grievors that it had been advised by the Ministry of Works, Transport and Public Utilities of certain allegations against them individually and as such the LTA suspended the grievors in order to facilitate investigations without delay or interference.

7] Whilst the grievors were on suspension, an investigation report was prepared by the Special Investigation and Disciplinary Unit of the Ministry of Works, Transport and Public Utilities and forwarded to the LTA. Upon considering the contents of the investigation report, the LTA drafted charges and forwarded them to the grievors giving them 14 days to admit or deny the charges and to give such explanations to enable proper consideration.

8] All the grievors replied to the charges and the LTA informed them by the memorandum dated 24th December 2010 that it was satisfied of the truth of the charges and in that regard required them to appear for mitigation. Only Mesake Tamani, Setoki Ceinaturaga and Litiana Nayavusoata attended the mitigation session with management.

9] The LTA opined that the actions it took as outlined in paragraph 8 above were in conformity with Clause 8.2.4 of the (MOA) and Clause 12.2 (d) of the Partnership Agreement (PA). In that connection the LTA after considering the investigation report, the reply to the charges and the mitigation made, terminated the employment of all the grievors. 

10] The grievors' counsel submits that these grievors like the rest of the employees at LTA are subjected to either the MOA or the PA. Pursuant to Article 8.2.1 of the MOA between the LTA and the 3 Trade Unions namely the Fiji Public Service Association, Viti National Union of Taukei Workers and Public Employees Union, the LTA's right to discipline its employees is not absolute, as in Article 1 of the MOA, the LTA as the employer in exercising its rights under the Article "shall observe all the provisions of the Agreement and shall not take any action which shall be in breach thereof." 

Whilst still on the application of the Collective Agreement, the grievors' counsel further submits that Article C of the MOA stipulates that the terms and conditions of the Agreement apply to all employees irrespective of the fact that an employee has a separate partnership agreement with the LTA.

11] Counsel for the grievors told the Tribunal that all the grievors complied with Article 8.2.1 of the MOA by denying the various charges within 14 days. As to the nature of the charges, counsel submits that they were mere allegations and since the charges were denied, Article 8.2.4 kicked in as follows:

 "the Authority shall, if it considers necessary to consider the truth of the charge and to find facts, request for an independent inquiry to be made into the alleged breach of the Code of Conduct."

12] Following the requirements of clause 8.2.4. counsel for the grievors argues that the task of establishing the truth of the charges and to find facts shift to an independent body of inquiry presided solely by an independent person appointed in consultation with the union. The LTA under Article 8.2.4 is obliged to request for an independent inquiry to establish the truth of the charge and to find facts. Finding the truth of the charge after its denial by an employee was not the role of the LTA under Article 8.2.4. 

The employer, LTA is therefore estopped by the presumption of innocence principle implied by Article 8.2.4 via the phrase "to establish the truth of the charge" and the words "alleged breach". Counsel for the grievors further argues that this criminal principle is applicable not only because of the words contained in clause 8.2.4 but as well as the use of penalties under clause 8.2.7.

13] Still on clause 8.2.4, counsel for the grievors emphasized that an inquiry under this Article would lead to the preparation of a "report of the findings" by an independent inquiry. The inquiry required a "presentation of the case" pursuant to clause 8.2.5 which entitles the grievors to be present and to be assisted in the presentation of their cases by other employees, barrister and solicitor or trade union, and the right to call witnesses as provided for in clause 8.2.6.

 Making closing submissions on the disciplinary procedures, counsel for the grievors stressed that the LTA alone cannot be running the process of establishing the truth and fact finding for the obvious reason that it would be a breach of natural justice that the investigator also becomes the Judge and secondly, it would usurp the purpose and role of the independent inquiry.

14] In conclusion, counsel for the grievors stressed the point that the LTA cannot usurp the requirements of clause 8.2.4 and acting in breach of it. The LTA cannot find guilt against an employee premised solely on the unchallenged statements of witnesses or complainants. Witness statements cannot be accepted on face value as the truth, as its truthfulness or otherwise can only be determined by the scrutiny of its maker. Counsel reasoned that, it is why clause 8.2.5 provides for the presentation of the case and calling of witnesses and that these witnesses are not called merely to regurgitate what was on their statements, but also to allow opposing parties to scrutinize their evidence. Lastly, counsel submitted that the grievors were not accorded the right to appeal under clause 8.2.10. For all these reasons, the grievors were unfairly terminated.

Analysis and Decision

15] Counsel for the employer correctly pointed out the contentious issues raised by the grievors to be the following:

[i] Whether the employer had followed the correct procedures of discipline when dismissing the grievors?

[ii] Whether the Special Investigation Report from the Ministry Investigations team can be used by the employer in its process to dismiss the grievors considering that the Special Investigation Team from the Ministry is a government entity as the LTA is a statutory authority?

[iii] Whether the employer had followed the principles of natural justice specifically the right to be heard when it dismissed the grievors?

[iv] Whether the employer had complied with the Terms and Conditions of the Collective Agreement specifically Clause 8.2.4 the appointing of an Independent Inquiry? And

[v] Whether the employer breached the rights of the grievors when it failed to establish and convene the Appeals Committee under the Collective Agreement?

16] The Tribunal further agrees with the employer to discuss items [ii] to [v] above in order to establish [i]. 

Item [ii] deals with the Special Investigation Report of the Ministry Investigation Team and the question is whether it could be used by LTA to dismiss the grievors considering that the Special Investigation Team is from the Ministry which is a Government entity relative to the LTA which is a statutory authority as established under section 6 of the Land Transport Act. At first glance, there is no issue with the LTA acting on a Special Investigation Report from the Ministry's Investigation Team; this is the Ministry of Works, Transport and Public Utilities which is the parent Ministry of LTA under the corporate governance and relationships of statutory authorities and Government Ministries.

 Counsel for the LTA assisted the Tribunal by citing the case of Ravind Milan Lal & Ors v. Land Transport Authority and Australian and New Zealand Banking Group HBC 213 of 1994 where Justice Inoke substantively considered the provisions of section 6 of the LTA Act 1998 and at paragraph 57 of his judgment at page 15 stated "I have examined the provisions of the Land Transport Act 1998… and I am of the view that the functions of the LTA involve the affairs of the property of the State and for the purposes connected herewith. It comes within the policy of the Act and its protection." Also in the cited case, counsel for the employer quoted the Learned Judge at paragraph 48 …"that the LTA is a servant or agent of the state…."

The Tribunal agrees with the submission made by counsel for the employer that LTA being an agent of the State is not free from any government participation in areas affecting the LTA and therefore must take into consideration government advice pertaining to certain issues. In that connection the line Minister has special powers under section 10 of the LTA Act to give any general or specific direction as to policy to the LTA. In addition to that the LTA board is appointed by the Minister and the Permanent Secretary for Transport is also a member of the LTA Board. In that regard the Tribunal answers item [i] in the affirmative.

17] Item [iii] Whether the LTA had followed the principles of natural justice specifically the "right to be heard" when it dismissed the grievors? Whether the LTA had complied with the Terms and Conditions of the Collective Agreement specifically Clause 8.2.4 regarding the appointing of an independent inquiry?

The Ministry Investigation team had received complaints on the issues of breaches by the grievers and formulated a report from statements adduced by the complainants. The complaints were rightfully forwarded to the LTA as these were complaints received at the Ministry regarding the grievers who were then LTA employees. Upon receiving the allegation, the LTA had suspended the grievers to facilitate the investigations on allegations against the grievers. 

The suspension was in line with the MOA pursuant to clause 8.2.3 which stipulates "whilst any breach of discipline, notification of which has been given to the employee, is being investigated and where is becomes necessary in the public interest, the Authority may suspend the employee at once from the exercise and functions of office, or place the employee on other duties."

This particular clause does not stipulate the body that conducts the investigations but stipulates that the Authority may suspend to which the Authority had exercised the discretion to suspend.

The PA stipulates at paragraph 12.2(e) gives similar wordings and states "An employee who commits an offence in 12.1 may be disciplined as follows; (e) where it is considered necessary, the employee may be relieved of his/her duty to facilitate the enquiry."

The investigation report was prepared by the Ministry of Transport Special Investigation and Disciplinary Unit and forwarded to the LTA, as earlier submitted the LTA is not an autonomous body and therefore allows for participation by the Ministry of Transport (government) in its affair.

Upon receiving the investigation report, the LTA in compliance with clause 8.2.1 of the MOA issued disciplinary charges to the grievers to which a reply to the charge was to be received by the LTA within 14 days. 

The Partnership Agreement does not make provisions for the laying charges, however, in compliance to the principle of natural justice, the grievers bound by the Partnership Agreement were also charged to which a reply to the charge was to be received by the Employer within 14 days. All the grievers' in compliance to Clause 8.2.1 of the MOA replied to the charges/allegations; and upon considering the investigation report and the grievers replies, the LTA directed that the grievors appear before the LTA.

The employer's counsel submits that the Employment Tribunal is not strictly bound by the Criminal Law and does not fall within the Criminal Jurisdiction to which charges and allegations are strictly separate processes. The employer's counsel submits that charges and allegations are words that are used interchangeably to mean the same process as employment falls within the Civil Jurisdiction having its standard of proof on the balance of probabilities rather than the criminal standard of "proof beyond reasonable doubt."

The consideration is recognized not only by the relevant MOA but also a recognized practice stipulated in the case of Fiji Public Service Association v. Land Transport Authority Award no. 4 of 2008 at page 18 "the disciplinary hearing to which reference has already been made was conducted on 20 February 2006 at the Authority's Valelevu Office. The panel consisted of eight senior managers/staff of the Authority and the unrepresented griever. The panel included the MHR who had prepared the charges and signed the charge memorandum. It also included the Chief Executive who acted as chairman and who was actually required to approve the final decision as to penalty in the event that the griever was found guilty of misconduct…"

The Permanent Arbitrator as he was then further stated at page 19, after the "Hearing had been completed the panel made some findings after considering the material and grievers explanations. It was decided that the Grievers employment should be terminated with immediate effect…….."

The Permanent Arbitrator further stated "The Tribunal is satisfied that there was no element of pre-determination or bias in the proceedings.…"

The LTA submits that there was no bias in the proceedings regarding the 3 grievors hearing before the Land Transport Authority management and that there was no pre-determination, as the hearing of the grievors before termination, was a practice considered fair and justifiable by the Arbitration Tribunal as he was then. 

18] The Tribunal disagrees with the assertion by the employer's counsel that the Employment Tribunal is not strictly bound by the Criminal Law and does not fall within the Criminal Jurisdiction to which charges and allegations are strictly separate processes. When the Tribunal adjudicates on the offences under the Employment Relations Promulgation 2007 it uses the criminal standard of "proof beyond reasonable doubt," as shown in the wording of the statute if one looks at section 33 (1)(a)… "where a worker is guilty of gross misconduct..." How else would one determine guilt? 

In that connection the words allegations and charges are not used interchangeably to mean the same process as individually they are separate parts of the disciplinary process. To determine guilt, there has to be an allegation, an investigation, charges, hearing and then decision making. At the hearing the grievor has to have representation and the rights to cross examine complainants as to the truth of the charges before an independent body or person makes the finding.

19] As part of the disciplinary process the grievors were given 14 days to reply to the allegations after which they were given the following standard letters:

"You are hereby notified that the Land Transport Authority is satisfied as to the truth of the allegations against you considering the report from the Special Investigation & Discipline Unit (Ministry of Works, Transport and Public Utilities), the allegations put forth by the Authority and your reply to the allegations.

As a result you are further notified to attend before the Land Transport Authority Management on 4th January 2011 at 10.30 am at LTA Board Room – HQ for mitigation purposes, which shall aide the Authority in meting out the appropriate penalty."

20] Now, let us look at the chronology of events as follows:

 a] Report by the Special Investigation and Discipline Unit to the LTA;

 b] Allegations put to the grievors by LTA with 14 days to reply;

 c] Grievors replied to the LTA;

 d] LTA satisfied as to the truth of the allegations; 

 e] LTA called the grievors to appear for mitigation at different times to assist the LTA in meting out the appropriate penalty; and 

 f] The grievors terminated with second last paragraph of the termination letters all identical as follows:

 "There are sufficient evidence to prove your actions do not warrant counseling or warning and that it only warrants dismissal. You have breached the Authority's Code of Conduct and rules and regulations specified in the Land Transport Authority Act."

21] From the chronology of events, the actual hearings afforded to the grievors are conspicuously missing, the decisions made to terminate were largely made on the allegations made by the complainants and the guilt established before the grievors were even asked to mitigate to assist the employer in meting out an appropriate penalty. There was no hearing of evidence where the grievors could scrutinize and cross examine the complaints.

22] Counsel for the grievors assisted the Tribunal by referring to the audi alteram partem rule – "hear him out" or the right to be heard as echoed by Lord Denning in Kanda v. Government of Malaya [1962] AC 322 followed in A-G v. Ryan [1980] AC 718. His Lordship said "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them."

23] In this case the grievors were not given the evidence and the statements against them and they were thus denied the right to be heard or accorded natural justice. 

24] Item [iv] The Tribunal finds that the grievors were also denied access to the Disciplinary Inquiry as provided for in Clause 8.2.4 of the MOA. The Tribunal sees the need for an inquiry to establish the truth as there have been some serious allegations made against these grievors and the failure of the employer to activate an independent inquiry goes against the fundamental principles and rights at work as provided for in Part 2 of the Employment Relations Promulgation 2007.

25] When the grievors denied the charges, the LTA should have activated Clause 8.2.4 of the MOA and establish an independent inquiry into the alleged breach of the Code of Conduct. The task of establishing the truth of the charges and to find facts shifts to an independent body of inquiry presided solely by an independent person appointed in consultation with the union. This is mandatory on the employer to establish the truth as finding the truth of the charges after denial by the grievors is not the role of the LTA under Article 8.2.4.

26] Item [v] Whether the employer breached the rights of the grievors when it failed to establish and convene the Appeals Committee under the MOA? The right to appeal against disciplinary action is provided for in Article 8.2.10 of the MOA as follows: 

 "Any disciplinary action decided upon shall be communicated to the employee as soon as practicable and the employee shall be given the right to appeal against such decision within 14 days from the date of receipt thereof."

This is again another compulsory provision in the Collective Agreement that has been breached by the LTA and from the evidence it did not even acknowledge receiving an appeal from the counsel of the grievors.

From the above, the Tribunal answers Item [i] in the negative in that LTA did not follow correct procedures of discipline when dismissing the grievors.

27] The Employment Relations Promulgation 2007 (ERP) provides for 2 categories of dismissal: unjustified and unfair dismissals. There is no statutory or common law definitions of "unjustifiable and unfair dismissals" and in a recent decision the 2 terms were defined as follows: 

"For a dismissal to be justified, it would need to be capable of demonstration that it was just, right or valid; capable of being defended with good reasoning. A decision would be unfair, if it was harsh, unjust or unreasonable."  

28] The test for justification which applies to claims of unjustifiable dismissal is the following:

…The question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering whether the employer's actions, and how the employer acted, were what a reasonable employer would have done in all the circumstances at the time the dismissal or action occurred.

All the circumstances at the time the dismissal occurred would include the type, resource and size of the employer. The LTA is a major employer in the country and the grievors can be classified as your usual LTA employees on the frontline; the road. The duty of good faith extended to the LTA and at least required it to hear the grievors before making the decision to terminate them.

29] This case illustrates that the circumstances of a worker environment are a factor to be considered. This means that the standards of what is fair and reasonable may be varied according to the circumstances and a fair and reasonable employer may not necessarily be totally impartial or neutral. Of necessity employers like the LTA bring to their decisions the values, culture and expectations of their specific work place. They must weigh the impact of the behavior of an employee under investigation on other employees and the work environment generally. However, this does not give the LTA unbridled license to impose its personal prejudices or values on these grievors. The concept of fairness implies an open – minded approach and reasonableness implies rationality.

30] A dismissal following poor or unfair procedures will normally result in the finding that the dismissal was unjustified. However, the Courts in New Zealand have recognized that most employers will not be able to provide perfectly fair procedures for dismissing employees. In BP Oil v NDU [1992] 3 ERNZ 483 (CA): the Court of Appeal said - "The question is essentially whether it was open to a reasonable and fair employer to do so in the circumstances."

31] Another important case on the disciplinary process is the NZ Food Processing IUOW v Unilever New Zealand Ltd (1990) 1 NZLR 35 the Court also said that.. "the employer's conduct of the disciplinary processes is not to be put under a microscope and subjected to pedantic scrutiny."

This means that minor procedural inadequacies should not render a disciplinary action unjustified but in this case the Tribunal found that the grievors were confronted with the allegations, denied the formal disciplinary procedure in the Memorandum of Agreement and served the termination letters. That would not qualify as a minor procedural inadequacy.

32] From the evidence the Tribunal is satisfied that the LTA did not make any attempt to accord the grievors all the fair procedures as stipulated in the leading Unilever case which says that the employee must be given:

•	Notice of the specific allegation and its gravity and possible outcome;

•	An opportunity to refute the allegations (with an opportunity to have a representative, not simply a witness, present); and

•	Unbiased consideration of the employee's explanation.

Determination of the Tribunal

33] The Tribunal in analyzing the evidence and arguments has come to the conclusion that the grievors were unjustifiably and unfairly terminated in that the LTA did not follow fair procedures especially the right to be heard. The right to be heard in person is very important as it gives an opportunity to reply especially when a person's livelihood is under threat of being adversely affected.

Remedies

34]	 [i] Under section 230 (1)(a) of the Employment Relations Promulgation 2007, the Tribunal orders the immediate reinstatement of all the grievors including those that did not attend the mitigation meeting with the LTA to former positions or positions no less advantageous to the grievors;

 [ii] Under section 230 (1)(b) of the Employment Relations Promulgation 2007, the Tribunal orders the reimbursement to the grievors of 15 months wages lost as the result of the grievance;

 [iii] Under section 230 (1)(c) of the Employment Relations Promulgation 2007, the Tribunal orders the payment of 12 months compensation for humiliation, loss of dignity and injury to the feelings of the grievors as they are well known to the local communities; and

 [iv] Under section 230 (2)(a) & (b) reduce the compensation at paragraph [iii] above by 6 months in consideration of the extent to which the grievors' actions contributed to the situation that gave rise to the employment grievance.

DATED at Suva this 18th day of April 2012.

Sainivalati Kuruduadua
Chief Tribunal