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Fiji Public service Association v Land Transport Authority [2012] FJET 54; ERT Misc. Case 51.2011 (15 June 2012)

IN THE EMPLOYMENT
TRIBUNAL AT SUVA

ERT Misc. Case No. 51 of 2011

BETWEEN:

FIJI PUBLIC SERVICE ASSOCIATION
THE UNION

AND:

LAND TRANSPORT AUTHORITY
THE EMPLOYER

DETERMINATION OF MOTION

The Motion

A] The Motion filed by the Fiji Public Service Association made application for the following Orders:

a] That the employer do comply with Clause 3.19.3 of the Collective Agreement and pay Abdul Nahid Khan, Enforcement Officer the transfer allowance upon his transfer from Valelevu to Sigatoka that was effective from 18th July, 2011;

b] Costs and

c] Any further Orders or relief which the Tribunal considers appropriate in the circumstances.

Affidavit in Support

B] The Motion was supported by an Affidavit from D. Nair which amongst other things stipulate the following:-

1) That on or about 17th December, 2001 the Union and the Employer had duly executed a Collective Agreement in respect of the members of the Union who were employed by the employer.

2) That the contents of the said Collective Agreement constituted the terms and conditions of employment of the members of the Union.

3) That on 20th June, 2011 the employer issued a transfer letter to one of the members of the Union, namely Abdul Nahid Khan (hereinafter referred to as the "worker') an Enforcement Officer for his transfer from Valelevu to Sigatoka LTA office.

4) That this transfer was based on the request of the worker who had served in Valelevu since 10th September, 2007 (more than 3 years).

5) That on 22nd June, 2011 the worker made a written request for the payment of the transfer allowance as required under clause 3.19.3(ii) of the Collective Agreement.

6) That clause 3.19.3(ii) of the Collective Agreement read as follows;

'In the case of an employee who requests a transfer and has not served at a station for three (3) years, no transfer allowance is payable except travelling expenses."

7) That the employer had verbally advised the worker that he is not entitled to the transfer allowance as in accordance with their interpretation of the said clause of the Collective Agreement he did not qualify.

8) That on 27th June, 2011 the Union wrote to the employer requesting for the payment of the transfer allowance but to date the employer had not responded.

9) That since the worker had served for more than 3 years in Valelevu, the Union submits that he qualifies for the payment of transfer allowance.

10) That the actions of the employer to arbitrary interpret clause 3.19.3(ii) of the Collective Agreement had denied the worker his legitimate entitlement that is due to him under the Collective Agreement.

11) That in addition the interpretation of the employer of clause 3.19.3(ii) of the Collective Agreement is unreasonable and only designed to justify the nonpayment of the transfer allowance to the worker.

12) That the Tribunal is respectfully requested to grant the orders in terms of the Motion filed.

Affidavits in Reply

C] The Land Transport Authority then filed an answering response in the Affidavit by the General Manager Operations, the Manager ECRT and the Manager Registration and Licensing and the Financial Controller as follows:

1) We, Josefa Vosanibola, Timoci Satakala, Uday Raj Singh, Elena Wakolo, General Manager Operations, Manager ECRT, Manager Registration and Licencing and Financial Controller respectively make oath and say as follows:-

2) That we are members of the Staff Board for the above named Employer and are authorized by it to file this affidavit of its behalf.

3). That we depose to the facts herein as within our own knowledge and that acquired by us in the course of our duties save and except where stated to be on information and belief and where so stated we believe to be true.

4). That this is our affidavit in response to the Motion and Affidavit of Damodaran Nair filed for and on behalf of the Griever, one Abdul Nahid Khan.

5). That paragraph 3 and 4 of the Affidavit in Support is not denied.

6). That in response to paragraph 5 of the Affidavit in Support we cannot confirm issuing a transfer letter to Abdul Nahid Khan on 20th June 2011 however we had issued a memo dated 17th June 2011 to Abdul Nahid Khan concerning his transfer to Sigatoka.

7). That in response to paragraph 6 of the Affidavit in Support we can confirm that the Abdul Nahid Khan had requested for a transfer via minute dated 26th April 2011 and that he had served at the Employers Valelevu office since 10th September 2007.

8). That paragraph 7 of the Affidavit in Support is neither admitted nor denied as matters averred are known only to the Griever and the Union.

9). That we do not deny the contents of paragraph 8 of the Affidavit in Support.

10). The we deny paragraph 9 of the Affidavit in Support and we refer to paragraph 5 above-mentioned and the memo annexed as "E1" which stated that Abdul Nahid Khan would not be paid any transfer allowance.

11). That paragraph 10 of the Affidavit in Support is neither admitted nor denied as matters averred are known only to the Union.

12). That is response to paragraphs 11, 12 and 13 of the Affidavit in Support we have been advised and verily believe that the interpretation of the Collective Agreement is neither the Union's nor the Employer's responsibility but rests entirely with Tribunal.

13). That we have been advised and verily believe that paragraphs 11, 12 and 13 of the Affidavit in Support are more suited to legal submissions and not affidavits.

14). That we have been advised and verily believe that facts and material intended to be produced in support of a Griever's contention should form as part of the Affidavit and not submissions as the Union have done.

15). That the Employer's decision not to pay Abdul Nahid Khan's transfer allowance is based on the Employer's practice on the issue.

16). That the Employer has always maintained the practice that any employee who seeks to be transferred on his/her own volition shall only be paid travelling expenses.

17). That such practice was applied in Abdul Nahid Khan's case and was explained to him via memo dated 20th June 2011.

18). That I pray that the Tribunal shall consider the contents of this affidavit.

19). That I pray that there no order as to costs, however if the Tribunal deems that costs are necessary that I pray that costs be in the cause.

D] There was a further Affidavit in Reply by Elena Wakolo the Financial Controller in which she says the following:

1] That I have no knowledge of matters averred in paragraphs 1 and 2 of the Affidavit in Support of Damodaran Nair.

2] That I admit paragraphs 3, 4, 5,6,7,8 of the said Affidavit.

3] That I admit paragraph 9 and further state that clause 3.19.3 (ii) of the Collective Agreement states that "in the case of an employee who requests a transfer and has not served for three years (3), no transfer allowance is payable except travelling expenses." The Employer further states that the clause does not specifically state that the worker have to serve more than 3 years to be entitled to Transfer Allowance, the limit is 3 years ONLY.

4] That I have no knowledge of the matters in paragraph 10.

5] That I deny paragraphs 11,12,13,14 of the said Affidavit.

6] That I seek the application to be dismissed.

Analysis and Decision

E] Both the Fiji Public Service Association and the Land Transport Authority agreed that the Tribunal interpret the relevant section of the Collective Agreement which is section 3.19.3(ii) as cited above. The Tribunal agrees that this is a provision in the parties' collective agreement and the disagreement is over the interpretation of this particular section.

F] The facts presented to the Tribunal show the following details:

- that Abdul Nahid Khan is a member of the Union and employed with the Land Transport Authority as an Enforcement Officer based at Valelevu;

- that on 26th April, 2011 Abdul Nahid Khan made known through a minute his interest to be transferred to Sigatoka;

- that the Staff Board at its meeting held on 9th June, 2011 agreed on the transfer to be effective from 15th July 2011 on existing terms and conditions of employment;

- that on 17th June, 2011 the Financial Controller Elena Wakolo advised Abdul Nahid Khan by memorandum that as per Clause 3.19.3 (ii) of the Collective Agreement no allowance shall be payable to employees who request to be transferred on their own volition except for travelling expenses only, therefore he is not entitled to any other allowances;

- that on 20th June, 2011 the Manger Human Resources, Ashika Devi by memorandum advised Abdul Nahid Khan that his request has been approved and that his transfer to Sigatoka as a Road Safety Officer will be effective from 18th July, 2011. And that he should report to Josua Dimuri at 8.00 am on that day for allocation of duties. In this memorandum, the employer's position on Clause 3.19.3 (ii) is repeated.

- that on 22nd June, 2011 Abdul Nahid Khan wrote to the Chief Executive Officer of the Land Transport Authority under Clause 3.19.3 (ii) of the Collective Agreement he qualifies for transfer allowance as he has served for more than 3 years since commencing work on 10th September, 2007.

- that on 27th June, 2011 the Union wrote to the Chief Executive Officer of the Land Transport Authority asking that Abdul Nahid Khan be paid the transfer allowance since he is entitled to it as he has served for more than 3 years.

G] Apparently there was no reply from the Land Transport Authority to the enquiries from the Union and the matter ended up in the Tribunal. As both parties agreed that the issue is the matter of interpretation, the Tribunal referred to the decision in Din v Westpac Corporation [2004] FJCA 30;ABU0066.2003S (26 November 2004) where the Court of Appeal discussed the observations of Lord Hoffman when delivering the judgement of the majority in the House of Lords in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 All ER at 114 on the principles by which contractual documents are construed, his Lordship summarized the principles as follows:

H] Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

I] The background was famously referred to by Lord Wilberforce as the 'matrix of fact', but this phrase is, it anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

J] The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.

K] The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammar; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (an occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax.

L] The 'rule' that words should be given their 'natural and ordinary meaning' reflects the commonsense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Cia Naveira SA v SWalen Rederierna AB. The Antaias [1984] 3 All ER 229 at 233, [1985] AC 191 at 201:

"if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense."

M] Lord Hoffman's approach was adopted by the Court of Appeal in New Zealand in Boat Park Ltd v Hutchinson [1999] 2 NZLR 74, 81.

N] What is clear from this approach is that the evidence relating to the negotiations between the Union and the Land Transport Authority that led to the collective agreement is excluded as inadmissible. What the parties may have said or done or offered or rejected in the course of those negotiations is irrelevant when determining the meaning to be attributed to the clause in question. Similarly what the parties say they intended the clause to mean is inadmissible and irrelevant.

O] It is clear from Lord Hoffman's approach that the interpretation of the clause is to be approached objectively. It is the meaning that the clause would convey to a reasonable person having the relevant background knowledge, that is to be determined, not the meaning that the parties to the agreement thought the clause would have.

P] The Tribunal views that the second Affidavit of the Land Transport Authority deposed by the Financial Controller as telling the Union that a worker does not have to serve for more than 3 years to qualify for transfer allowance as the limit is 3 years only. Whilst the Tribunal does not want to attribute to the parties an intention they could not have had, it is business common sense to yield to the interpretation advocated by the Union on Clause 3.19.3 (ii) which says:

"In the case of an employee who requests a transfer and has not served at a station for 3 years, no transfer allowance is payable except travelling expenses."

Should be interpreted according to the Union to mean that a worker who has worked for more than 3 years and is transferred on request should be paid a transfer allowance. The Tribunal gives weight to the Unions interpretation in the context of Clause 3.19.3 (i) which says:

"A transfer allowance is payable to an employee when the employee is transferred from one station to another and where the transfer justifies and results in a change of residence."

Q] A transfer can only occur when it is justified and that is justification for the payment of the accompanying allowance as Abdul Nahid Khan has been transferred.

Determination

R] The Tribunal grants Orders in terms of the Motion –

i] That Abdul Nahid Khan be paid the applicable transfer allowance; and

ii] Costs of $200 to the Union.

DATED at Suva this 15th day of June, 2012

Sainivalati Kuruduadua
Chief Tribunal