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Fiji Employment Tribunal |
IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA ERT No. 57 of 2011
BETWEEN:
FABIANO VAKADRANU
GRIEVOR
AND:
LAND TRANSPORT AUTHORITY
EMPLOYER
Appearances:
Mr. Noel. Tofinga for the Grievor
Ms. May Ronda for the Employer
Date of Hearing: 18th April 2012
Date of Judgment: 18th April 2013
DETERMINATION OF THE EMPLOYMENT RELATIONS TRIBUNAL
1.0 Employment Relations Grievance
1.1 Background to the Grievance
1.2 This grievance was registered with Ministry of Labour on 1st November 2010. Mediation was attempted on various occasions (22nd December 2010; 7th and 18th January 2011 and 28th February 2011) but was not successful. The mediator referred the grievance to the Employment Relations Tribunal (or “the ERT”) on 28th February 2010 in accordance with s194 (5) of the Employment Relations Promulgation 2007 (or “the ERP 2007”) outlining the nature of unsettled employment grievance with the following terms of reference:-
“The worker Fabaiano Vakadranu was employed by Land Transport Authority as a Road Safety Officer when his employment was terminated with effect from 3rd September 2010. Fabaino is alleged to have accepted $350 and depositing the same in his personal bank account whilst in the due execution of duty which led to his Summary Dismissal”
2.0 Cause Before the Employment Relations Tribunal (or “the ERT”)
2.1 When the matter was called before the Hon. Chief Tribunal, he had directed the parties to file their respective Preliminary Submissions on 29th March 2011. The Employer, Land Transport Authority (or “the LTA”) filed their Preliminary Submissions on 18th May 2011 but, it seems the grievor had filed his Preliminary Submissions on 9th May 2011. On 21st February 2012, the parties sought directions from the Tribunal where they were to file A Statement of Agreed Facts. This was never done.
2.2 The hearing of the matter was conducted on 18th April 2012. On that day, the employer alluded the ERT that they would not be calling witnesses and relying entirely on the documents attached to their Preliminary Submissions marked as “FV1; FV2; and FV3”. Only two of the documents namely, FV2; and FV3 were accepted by the grievor by consent which are:
- “FV2” – Minutes of Meeting held on 6th August 2010 marked as “Exhibit 1”
- “FV3” – Memorandum dated 1st September 2010–“TERMINATION OF EMPLOYMENT” marked as “Exhibit 2”.
2.3 The grievor gave sworn evidence to put forward his claim.
3.0 Background to the Claim
3.1 I have summarized the claim from the information provided in the Preliminary Submissions of LTA dated 18th May 2011. Before his summary dismissal, the Grievor was an employee of LTA by virtue of an offer of employment given to him on or about 15th August 2007 as a Road Safety Officer at the Employer’s headquarters in Valelevu (this was marked as Exhibit 3). The Grievor’s employment was confirmed on or about 9th April 2008. The Griever was subsequently transferred to the Employer’s Nadi Office on or about 28th May 2010.
3.2 Whilst stationed at the Nadi Office, the Employer had received a complaint from one, Mr Bryan Smith alleging that an Officer of LTA had been involved in seeking bribe and thus defrauded his driver and himself in the sum of three hundred and fifty dollars (FJD$350.00). An investigation was conducted into the matter by the Suva LTA investigating team where it was revealed that the Grievor was the officer involved in the allegations.
3.3 Subsequently, an investigation report was prepared and submitted to the Employer which revealed in its findings that:
“FINDINGS
3.4 A copy of the investigation report dated 15th July 2010 was annexed to the employer’s preliminary submissions and marked as ‘FV1’. This document remained unmarked as an Exhibit. However, because the grievor knew that an investigation team was conducting a proper enquiry into Mr Smith’s allegations (regardless of the mode of complaint), and it was part of the Employer’s Preliminary Submissions dated 18th May 2011, whereby the grievor was provided an opportunity to deny it validity or indeed that it was improper to use this report to cast any guilt in order to justify invoking summary dismissal against the grievor, I have to say that I find its purpose quite useful in drawing reference to the root of the allegations vis a viz the process of fact-finding before any punitive action was taken against the grievor. Also because the rules of evidence is not strict in the Tribunal matters [s231(1) of the ERP], I am allowing this piece of employer’s evidence to be relevant to the extent of assisting the Tribunal in understanding the reasons for exercising summary dismissal in this instance and whether or not procedural fairness of establishing the guilt required under s33(1)(a) for gross misconduct was satisfied on the standard of balance of probabilities.
3.5 That said, it remained undisputed fact that the Grievor did not deny receiving money from Mr Evans as pertained in the complaint by Mr Bryan Smith except that he had stated that it was for purposes of fine he was intending to impose on the driver and owner of a trailer he had stopped on the roadside. He had chased Mr Evan’s vehicle where he had obviously considered that Mr Evans was in breach of LTA laws, where the grievor, being a Road Safety Officer maintained that he had explained Mr Evans the legal procedure for proper registration of a trailer and the towing of a boat. This is when he said he had stepped in to help Mr Evans and took the money in form of a fine.
3.6 However, due to certain duties he was mandated to carry after receiving the said monies, he was unable to issue the Traffic Infringement Notice (or the “TIN”) to the driver in the sum of $150, and to the owner of the trailer in the sum of $200.00. In the interim, a complaint was made against the grievor that he had procured the said money through certain means or actions that was deemed improper by the LTA customer (Mr Smith) or the employer.
3.7 The employer, within four days of the said money being received by the grievor, conducted an investigation when the complaint was made. Consequently, this was tabled at the LTA’s Board meeting on 6th August 2010 whereby it was finally resolved that the Grievor be summarily dismissed within the ambit of Section 33(1) (a) of the Employment Relations Promulgation (2007). A copy of the deliberations was annexed and marked to the preliminary submissions as‘FV2’. This document was consented by the grievor and marked as Exhibit 1. The fact that this document was accepted by the grveior but the investigation report was not makes no sense. Clearly the LTA Board had made its decision based on the findings therein and this was reflected in the Minutes on page 4 at paragraph 16.0, where relevant:-
“16.0 RSO: Fabiano Vakadranu: The report highlighted the fraudulent actions by the above mentioned officer and was submitted for Authority’s decision on the penalty to be taken. It was further noted that the matter had also been reported to the Police...Members after a short deliberation RESOLVED to terminate hum under Section 33 of the ERP 2007...”
[Underlining is my emphasis only].
3.8 The grievor in his preliminary submissions dated 9th May 2011 had annexed another LTA Board Paper dated 29/7/10 which was marked as Exhibit 5. Here, I found attached to the Board paper a copy of the official police complaint made against the grievor as alluded in Exhibit 1 above. I am not sure at what stage the grievor had access to this particular Board paper, however, there is no doubt that the grievor had been aware that the employer was invoking a series of process for internal and external investigations. Thereby, further invoking its powers to obtain deliberations by the LTA’s mandated authorities such as the Manager Human Resource, GM Finance Administration and subsequently the LTA Board members to decide whether or not the grievor’s conduct of receiving monies from Mr Evans was in compliance with the employer’s laws and policies including the duties performed by the grievor as a public officer. If the grevior was found to have breached the employer’s laws and policies, clearly also LTA was considering and deliberating on the penalty. For example, I find the revenant part of the Board paper to be applicable to this case in terms of understanding what roles and duties this grievor had to play as a Road Safety Officer in handling Mr Evan’s situation where Mr Evan’s was towing a boat to a vehicle where proper registration was not complied with. At pages 25 and 25b it states and I quote:-
“What he should have done
HR Analysis
This is tantamount to a very serious misconduct. The fact is that had it not been for the complainant, the said money would not have been recovered nor the misdemeanor recorded.
We need to send a clear message on our “zero tolerance”, hence we should take disciplinary action now instead of sending the officer on leave.
The $350 cash is in custody in the safe in Accounts Section and to be returned to Mr Martin Evans after we dispose of the case.
HR Recommendations
[Bold and underlining is my emphasis only].
3.9 Through a Memorandum dated 2nd August 2010 (Exhibit 4), the grievor was then suspended with half pay where it was stated that:
“...Pending investigation against you for alleged breach of Code of Practice and Code of Conduct, you are hereby suspended on half salary effective from 2nd August 2010...”
[Bold and underlining is my emphasis only].
3.10 On 1st September 2010 the Grievor was notified of his termination. This termination letter in a Memorandum was marked as Exhibit 2. In that Memorandum, it stated that:-
“At its meeting held on 6th August 2010, the Board after considering a submission on the matter has resolved pursuant to Section 33(a) of Employment Relations Promulgation 2007 your employment with Land Transport Authority is hereby terminated effective from 3rd September 2010.
Your terminations of contract (summary dismissal) are based on the following:
That you Fabiano Vakadranu whilst employed by the Authority as Road Safety Officer
Pursuant to Clause 30 (6) of the Employment Relations Promulgation a Certificate of Service is attached.”
[Again, bold and underlining is my emphasis only].
4.0 Evidence of the Grievor
4.1 The Grievor had chosen to give sworn testimony. He told the Tribunal that he was employed by LTA on 2nd August 2007. His contract of service was a Collective Agreement between the Unions (i.e. FPSA, PEU and VNUTUW) and the employer. He told the Tribunal that prior his termination there was no other formal complaints made against him.
4.2 On or about mid-July 2010 an investigation team from Suva had visited the Lautoka Office and informed the Enforcement Section Team that somebody had lodged a complaint alleging that some LTA Staff had accepted a sum of $350.00 from one, Mr. Martin Evans as a bribe in Martintar, Nadi. The Grievor admitted to the Tribunal that without any hesitation he had voluntarily told the employer that he was the one who had received the said money for “Fine” purposes from Mr. Evans although he was yet to raise a Traffic Infringement Notice at the material time.
4.3 When asked where the money was, he told the investigating team that he had kept it home. Instead of going home to pick up the money, he chose to withdraw the same amount from a nearby ATM machine saying that it was easier as his home was far. The money was received by one Mr. Etika Mateisuva, the Officer in charge of the Investigation Team.
4.4 In terms of the facts relating to Mr. Evans, the Grievor explained to the Tribunal that on 12th July 2010, he had stopped a vehicle towing a trailer carrying a boat. The trailer was not registered and only had a trade plate. According to the law, a trailer is only allowed on the road with a trade plate on its own but it cannot carry a boat on it. The boat would then be required to be parked on the side of the road whilst the trailer would have to be registered. This process would take approximately one to two weeks.
4.5 The Grievor went onto explain that the passenger in the vehicle who had identified himself as Mr. Martin Evans, had told him that he was the owner of both the boat and trailer and that he owned a resort in Savusavu. He said the passenger Mr Evans was not too happy with the boat/trailer being ceased by an LTA officer as he was on his way to Lautoka to board a ferry to Savusavu.
4.6 The grievor testified that by this time he had told Mr Evans the whole process and amount of money required to release the boat and the trailer if he wanted to proceed to his journey. He said that Mr Evans begged him to release the trailer and requested if he could go to Savusavu and pass the trailer there. He said Mr Evans could not afford to be delayed and thus, when he had requested to pay all the fines upfront, assuring the Grievor that he would register the trailer as soon as they would arrive in Savusavu, this is when he had decided to help Mr. Evans. Consequently, he accepted a sum of $350.00 in good faith with the intention of raising a Traffic Infringement Notice to the driver in the sum of $150, and to the owner of the trailer in the sum of $200.00.
4.7 It was the Grievor’s testimony that the procedure is that he has 14 days to raise the Traffic Infringement Notice and that he was still within the time frame when the investigation was initiated. There was no evidence produced by the grievor to prove this fact under the employer’s regulating laws/policies (LTA ACT, etc).
4.8 The grievor also explained that he was not able to raise the Traffic Infringement Notice because he had to go to Suva the next morning on some official duty (i.e. to drive the Regional Manager Western to a scheduled meeting and later, he was compelled to stay in Suva by the Legal Section to attend court as a prosecution witness). When he returned to Lautoka on the fourth day of receiving the money from Mr Evans that was the same day the Investigating Team from Suva had arrived in the Western office to investigate the complaint lodged by Mr Smith.
4.9 In cross-examination he was asked whether he had demanded any money from the driver or owner of the vehicle registration No. EY 488, where the grievor replied, “No”.
4.10 He confirmed he had followed an unregistered trailer with two people in the vehicle towing a boat. He did not know their names although he remembered one passenger as Martin Evans. He said that he did not use a LTA vehicle to chase the vehicle registration No. EY 488; instead he had used a taxi.
4.11 He was then asked by the LTA counsel whether as a Road Safety Officer it was within his Job Description (JD) to collect revenue at the roadside. The grievor admitted he had done something that was not within his JD. He said that he had put the money at home and when probed if this was also part of his JD, he admitted that neither he had authority to collect money, to accept revenue from vehicle owners at the roadside or to take it home after collection. He was then asked if he recalled any aspect relating to his JD which he replied was in terms of booking traffic offenders and fining where required.
4.12 He remembered that the Employer’s investigation team conducted an enquiry into the allegations made by Mr Smith whereby he also recalled receiving his suspension letter. This was attached to the grievor’s preliminary submissions and marked in evidence as Exhibit 4.
4.13 In re-examination, he stated that he did not intend to keep the money he had obtained from Mr Evans.
5.0 Issues
5.1 Evidence and facts allude to the employer investigating a complaint received against the Grievor for allegedly demanding and taking money at the roadside as the Road Safety Officer in form of a bribe. This led to an investigation by the LTA Investigation Team where the Employer found the Grievor’s conduct being declared in a Board meeting held on 6th August 2010 to have breached s33(1)(a) of the ERP 2007, resulting in his summary dismissal. Therefore, the first issue of importance to be tested is whether or not this summary dismissal was lawful in terms of the merits (substance) of the grievance, meaning whether or not the conduct of the grievor was sufficient to be deemed a serious (or gross) misconduct resulting in the Employer summarily dismissing the Grievor under an explicit statutory provision (s33). The other issue that needs to be tested which is the grievor’s basis for alleging unfair dismissal is whether or not summary dismissal was fair in terms of the procedures followed in dismissing the Grievor.
5.2 The Grievor is claiming that his grievance relates to wrongful and unfair termination of his employment. He is alleging that the termination is contrary to long established practices in terms of procedural fairness, natural justice and his contract of service. The Grievor claimed that he had acted in good faith where there was no malicious intent on his part to defraud the Employer or an attempt to gain benefit through unlawful means. If the grievance matter is found in his favour, the grievor has sought Orders in terms of declaring the termination ultra vires the Promulgation (ERP 2007) and Grievor’s respective contract of Service, where he thus seeks an ORDER from the Tribunal to rescind the employer’s decision to terminate the grveior’s employment.
5.3 In terms of remedies, the Grievor is seeking Orders for immediate reinstatement leaving the reimbursement and compensation to the Tribunal to be decided within its discretionary powers.
6.0 Submissions By both Parties
6.1 After a cursory scrutiny of the legal submissions, the employer’s main justification for invoking summary dismissal against the grievor was because he was alleged to have demanded money from a vehicle owner at the roadside in the execution of his public duties in an attempt to seek bribe and/or defraud the employer. The employer ultimately concluded that such act of the grievor was proved through their internal investigation process, where he was found guilty of gross misconduct as per the letter of termination. A detailed description of the reasons (or “cause”) pertaining to gross misconduct was given in that Memorandum dated 1st September 2010: see above at paragraph 3.10 (Exhibit 2). Accordingly, the employer has justified in their Legal Submissions dated 16th July 2012 that they had invoked a statutory provision which deals with summary dismissal in the ERP 2007 (s33) which thus entitles them to exercise a right to terminate the grievor on-sport without notice or payment in lieu of notice. They supported their arguments with an array of case-authorities although two cases stood out: there are the cases of Central Manufacturing Company Limited v Yashni Kant (Unreported Fiji Supreme Court Case Number CBV 0010 of 2002 and Wallace v United Grain Growers Ltd., 1997 CanLII 332 (SCC); [1997] 3 S.C.R. 701.
6.2 Mr Tofinga in his submissions (in summary) argued in the grievor’s favour that:-
- There was breach of a Memorandum of Agreement (or “the MOA”) of 9th March 2004. He stated that the person who made the complaint against the grievor was never identified and thus it breached clause 3 of the MOA in terms of not being classed as a formal complaint. Because the complaint was never verified nor authenticated by the complainant it should not have been accepted as a formal complaint and subsequent disciplinary action taken against the grievor should not have proceeded. He submitted that due to this non-compliance with the MOA, it had put in question the validity of the disciplinary process as well as the consequential decision to have him terminated. It was then submitted that the process and the ultimate decision to terminate was made ultra-vires the MOA dated 9th March 2004 and the Collective Agreement which forged the Grievor’s contract of service. In that sense, Mr Tofinga has asked the Tribunal to treat the complaint as “deemed to have not been made and decision to terminate should therefore be rescinded”;
- The grievor had acted in good faith when he cooperated with the investigating team. It was submitted that “he could have easily kept quiet and no one would have known better”. It was submitted that the grievor had voluntarily admitted that he had the monies in his possession but he had no intention of keeping the money but every intention of raising a Traffic Infringement Notice. Since he was busy doing other mandated duties for the employer and given that he was still within the time frame when the investigation was initiated (although there was no evidence produced by the grievor to prove this), it was argued that Mr Fabiano Vakadranu should not have been accused of any wrong-doing. This is also because the grievor maintained that the employer had not produced evidence to challenge that Mr Fabiano Vakadranu had willfully intended to defraud the employer or sought bribe from Mr Evans; and
- If the grievor had acted in a wrongful manner then the employer should have informed him of the purported wrong-doing and identified which part of the Code of Conduct he had contravened in the Collective Agreement. It was submitted that s109 of the ERP makes it a statutory requirement for employment contracts to contain an employment grievance procedure and s110 of the ERP specifies that the said process must be consistent with the principles of natural justice. Here, Mr Tofinga alleged that prescribed process under clause 8 of the Collective Agreement was not followed. The grievor was denied the opportunity to respond to what exactly he had done wrong as he was never charged with clause 8.2.1 or heard on the charges pursuant to clause 8.2.5 and the right to mitigate pursuant to clause 8.2.10.
7.0 Final Determination
7.1 I do not wish to lay out the statutory provisions pertaining to summary dismissal in the ERP 2007. I have done this several times in my previous judgments. In my most recent judgment of Naibuka Naituku v- Land Transport Authority: ERT No. 91 of 2011 delivered on 10th April 2012, you will find the areas of law clearly outlined therein and where also similar issues of facts and law were at play as found in this case.
7.2 There too, the grievor was summarily dismissed by the same employer pursuant to s33(1)(a) of the ERP based on a public complaint.
7.3 The MOA dated 18th February 2004 referred in that case is in fact the same MOA referred here, although here it is regarded as “MOA of 9th March 2004” (based on the date stated on page 1). In Naibuka Naituku’s case, the grievor had attempted to use the MOA on the day of hearing to indicate that there was procedural defect in the way the complaint was received and handled by the Employer. The grievor in that instance was found by the Tribunal to have committed serious misconduct entitling the employer to invoke s33 of the ERP as a statutory right of the employer (as per the case of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011). This matter was entirely assessed on the facts (or evidence that proved “lawful cause”) and which, of course, established the overall merits (substance) of the case [see: Dunning (A.J.) & Sons (Shoplifters) Ltd v Jacomb (1973) IRLR 206; Sinclair v Neighbour [1967] 2 WLR 1; and Davis -v- Unemployment Insurance Review Board of the Indiana Department of Workforce Development, 900 NE 2d 488 (2009)].
7.4 For that matter, I had pronounced that a procedural defect that pertained to say, a right to receiving formal complaints in writing not being complied under a MOA forming part of the grievor's contract of service that would have ordinarily declared the grievor's termination unfair when applying the principles of natural justice and fairness, this Tribunal had ruled that it was not the most important determinant in declaring the claim unfair and/or unlawful. This is particularly when the facts in substance (or cause) had been duly established. This was done through a due process of investigation, laying of charges and subsequent disciplinary action. It was thus my view that "gross misconduct" was properly determined to exist where the employer had overwhelming evidence to justify invoking s33(1) (a) of the ERP against the grievor.
7.5 The Tribunal had noted in that case that while the MOA was a guiding document in terms of receiving complaints from the public, when weighted against the overall merits of the case that had clearly substantiated that there was gross misconduct on the part of the grievor when he had issued fitness certificate to a vehicle owner without any evidence in his favour to prove that it was physically inspected, this act or misconduct was a confirmation of breach of the employer's laws, rules and regulations contained in the grievor's contract of service. It then became less significant how the complaint was received as long as the grievor was put on notice and he had an opportunity to respond to the allegations. That said, the Tribunal in that instance went further and said that even if and when there is a right to respond to the allegations, it does not necessarily minimize or exonerate the culpability or change the fact that misconduct (or cause) had been established. In other words, for a claim of unfair dismissal to survive the grievor must come with clean hands and demonstrate to the Tribunal that the facts and evidence put forward by the employer are so vague, unfounded and feeble that any reasonable Tribunal could not arrive at the decision to find the alleged act would fit the substantive act of "gross (or serious) misconduct" to be deemed "lawful cause" on the standard of balance of probabilities.
7.6 As such, the evidence must be so weak that on its basis no-one in sound mind would consider it fair to declare the grievor guilty of that offence. Added on to that, the non-compliance of procedural fairness of hearing, mitigation and appeal system being part of the grievance procedure, whether or not codified in the contract of service, makes it easier to find that unfair dismissal in actual fact existed. On its own, allegations of procedural unfairness is not sufficient to declare a claim unlawful or unfair.
7.7 In that regard, I will neither go into the validity of the complaint received against the grievor that led to his summary dismissal other than test whether or not there was "cause" established nor broach this issue to ascertain whether or not it was not in compliance with the complaints procedure under the said MOA. The grievor had argued that the MOA formed part of his contract of service and the complaints procedure therein was breached by the employer. Clearly here, the grievor ought to have known how he could have defended the allegations made by a public member and demanded that formal complaint be furnished to him before he could offer any co-operation in the investigation process. He was after all a member of the Union and the relevance and existence of any such established procedure in the MOA should have been invoked if he was unhappy with the way the complaint was received and investigated. This leaves me to conclude that the disciplinary process and the ultimate decision of the employer to terminate Mr Fabiano Vakadranu was not made ultra-vires the MOA dated 9th March 2004 and the Collective Agreement which forged the Grievor's contract of service as submitted by Mr Tofinga.
7.8 In fact, I found from the evidence led in Mr Fabiano Vakadranu's testimony that he was not perturbed with the employer initiating an investigation into the allegations put forward by Mr Smith (internally or externally) and this was his position when he came to lodge a claim with Ministry of Labour. At all times, he maintained that he had voluntarily come forward and admitted that he had received $350.00 from Mr Evans for purposes of a fine. He further volunteered the information when the employer was undertaking an internal investigation that the money was still not deposited with the employer or that a Traffic Infringement Notice was raised as required for fining purposes. Instead he gave evidence in his testimony (and what was also confirmed in the investigation report of the employer) that the grievor held onto the money for at least four days, although he said it was unintentionally. He told the Tribunal he had no intention of keeping the money and argued he had 14 day to raise a TIN which he was prevented given his official engagements. He did not bring any evidence to prove where he was entitled by law or policy of the employer to keep the money that was accepted at the roadside in a form of fine and that he could keep this in his custody for 14 days.
7.9 Clearly when establishing "lawful cause" as required under section 34 and further under section 30(4) of the ERP where it states that:- "Nothing in this Promulgation precludes either party from summarily terminating a contract of service for lawful cause", the employer often relies on their rules and policies regulating acceptable code of conduct, the types of offences pertaining to gross misconduct and appropriate penalties therein. There was no contention as to the existence of such Code of Conduct in a Collective Agreement that apparently governed the employment relations between the parties although I only saw reference to this in the Suspension Letter (Exhibit 4) and Board Paper (Exhibit 5).
7.10 Alternatively, it was the employer's decision to invoke s33 of the ERP as seen through the letter of termination (Exhibit 2) as I suspect they went straight to a statutory right to summary dismissal without invoking the entire process as contained in the Collective Agreement. Mr Tofinga had strongly opposed this on the basis that the grievor was not fairly and lawfully dismissed as he was not told or identified the breaches in terms of the Code of Conduct outlined in the grievor's employment contract. He said the grievor was denied the opportunity to respond to what exactly he had done wrong as he was never charged with Clause 8.2.1 or heard on the charges pursuant to Clause 8.2.5 and the right to mitigate pursuant to Clause 8.2.10.
7.11 In the Court of Appeal case of Shell Fiji Ltd v Johnson [2010] FJCA 54; ABU0012/2009 (23 September 2010), where procedural fairness is concerned, I refer to what Lordships, Byrne and Callanchini J had pronounced which is helpful in determining at what point a reasonable Tribunal may find certain non-compliance of either express or implied provisions of contract of service to be still a fair response of the employer. Both Lordships had declined the trial judge's finding that the Respondent's omission to respond to the allegations in actual fact had caused the termination and that an omission to respond was not a misconduct that entitled to summarily dismiss the Respondent. The trial judge had noted and held that there was breach of implied term of employment contract where the employer had failed to either make payment in lieu of notice or give the respondent one week's notice before termination. The Full Court of Appeal considered and held that the respondent's employment was terminated because of his confirmed involvement in fraudulent fuel deliveries and not as the trial judge had found that the employment was terminated because of the respondent's failure to respond to the allegations of fraudulent fuel dealings. The Full Court then held that such a misconduct of fraudulent dealing was of sufficiently serious nature to warrant summary dismissal under s28 of the Employment Act Cap.92.
7.12 In the same case, the Court of Appeal had stated that:
"...The termination of employment by summary dismissal in this case will be wrong unless (a) the Respondent's misconduct fell within one of the circumstances listed in section 28 and (b) was of sufficiently serious nature that it would entitle (Shell) to regard the contract of service as being at an end..."
7.13 Similarly, Ladyship, Wati J in her judgment of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011 had looked at how contract of service can be interpreted in view of termination methods. Here, the Court noted that there were two mutually exclusive dismissal regimes (in the worker's employment contract) where dismissal could occur either by a week's notice or payment in lieu, or summary dismissal for serious misconduct without notice or payment in lieu. Additionally, the Court noted in Isoa's case that the employer was entitled to dismiss summarily (for gross misconduct) pursuant to s33 of the ERP. The Court went onto say and I quote:-
"...Indisputably the termination clause permits termination without cause....and also for summary dismissal, without notice for serious misconduct. Once the employer made (serious misconduct) the basis of termination, it is then correct for the Tribunal to make a finding as to whether the cause for termination was established by the employer as the onus to establish the ground is always on the employer. When the Tribunal made a finding that the lawful cause to terminate was not established, the termination became wrong and unlawful..." (unquote)
7.14 Whether or not the employer is entitled to stay within the parameters of the Contract of Service or go beyond and invoke a statutory right is a moot point given that s109 and s110 of the ERP allows for a grievance procedure to be invoked and tested as part of a due process of disciplinary action taken by the employer. However, s33 of the ERP is uncontestable right of the employer under a law now regulating employment relations in Fiji. Clearly, this now entitles the employer a choice to exercise summary dismissal as long as it is not done arbitrarily without a cause: that is, not just any cause but for "lawful" cause (as per s34 of the ERP). This was the stance taken by the Court of Appeal in the case of Shell Fiji Ltd v Johnson (supra) at paragraphs 30 and 31 (and which was also upheld by the Supreme Court[1] at paragraphs 26 and 27). His Lordships, Byrne and Callanchini J have stated that:-
"The right of an employer to summarily dismiss an employee at common law has been modified in Fiji by statute. At the relevant time, section 28 of the Employment Act Cap 92 (now repealed) stated:
"28 An employer shall not dismiss an employee summarily except in the following circumstances:
(a) where an employee is guilty of misconduct inconsistent with the fulfillment of the express or implied conditions of his contract of service;
(b) for willful disobedience to lawful orders given by the employer;
(c) – (e)...."
"....In the absence of a more generous term in an employee's contract of service, the summary dismissal of an employee will be wrong if it is inconsistent with the provisions of section 28."
7.15 Here, the Lordships considered the case of Fiji Public Service Association and Satish Kumar –v- the Arbitration Tribunal and Another (unreported Civil Appeal No. 13 of 1999 delivered on 19 February 2002) where the Fiji Court of Appeal had said (approving the comments made by the judge at the first instance) at page 10:
"Section 28 provided that an employer should not dismiss an employee summarily except in the circumstances specified therein. .... His Lordship said that the section did not confer an unfettered right to dismiss an employee where any of the matters specified in section 28 was found to exist, rather it removed the common law right to dismiss except where paragraphs (a) to (e) applied. He added that if any of the paragraphs applied, the common law right continued and there was not statutory or other objection to that right being fettered by an agreement between the employer and its employees...."
[Bold and underlining is my emphasis]
7.16 I then find that the employer was in keeping with the ERP 2007 provisions and entitled to invoke s33 as a statutory right of the employer which then leaves the question to test whether or not lawful cause was established to the Tribunal's satisfaction on the basis of the evidence adduced.
7.17 There is no doubt in my mind after analyzing the evidence in this case that the employer had a reasonable basis to find the grievor guilty of gross or serious misconduct. Bribery allegations coming from the public putting in question the character and professional integrity of a public officer that this grievor was, regardless of the nature of the complaint, cannot be treated with lightness or one without credibility on the basis that it was not properly lodged under the MOA.
7.18 A responsible employer particularly one that is a public office regulated under a law of Fiji (LTA Act) has the obligation to attend to such nature of allegations with caution and seriousness. With caution, so as to not prejudice the position of either party. And with seriousness, so as to not be seen to be condoning allegations of corrupt practices that is a serious act of crime in any context. Hence I found that the employer had taken a responsible step to at least investigate internally and later on, also externally via a police complaint to establish whether or not there was any legitimacy in the complaint received by Mr Bryan Smith. While the investigation report was not accepted by the grievor, I found the statements of all the involved persons attached therein including that of the grievor to be of probative value. I have to say that evidence in the employment matters needs to be assessed in its entirety and not just in isolated parts in order to weigh up its probative value and relevance to the alleged grievance.
7.19 In that investigation report, for example, the most persuasive evidence in favour of the employer was the statement of Mr Evans who clearly substantiates the grievor's testimony insofar as him stopping a vehicle and subsequently seeking a fine of $350 which was undisputed by the grievor to have been collected. This is despite the grievor had admitted that it was not his Job Description; instead he could have easily issued a paper fine (TIN) and left Mr Evans to take the money to the LTA office and pay there. Further, the grievor had said that he had put the money at home and when probed if this was also part of his JD, he had admitted that neither he had authority to collect money, nor to accept revenue from vehicle owners at the roadside or to take it home after collection. When asked about his understanding of the JD, he had replied that he was only required to book traffic offenders and fine them.
7.20 Therefore what aggravates the allegations even more is that when Mr Fabiano Vakadranu had collected the fine although it was not his duty description or authority to do so, and if I am to place benefit of doubt that he was genuinely attempting to help a distressed but offending driver and the owner of a vehicle on the roadside, he had failed to deposit the money with the employer as soon as possible. The 14 day period for an officer not mandated to collect revenue at all then does not need to be proved to the Tribunal to be a reasonable or genuine response of the grievor for keeping the money. If he had no authority to collect money, where would he derive the 14-day period to submit the same to the employer?
7.21 Consequently his testimony that he was unable to deposit $350.00 on time due to running errands for the employer, I find that he did not give a convincing explanation why he took the money home when he could have attempted to deposit the same in one of the LTA offices as I understand LTA has branches and offices in Western and Central division. Failing that, he could have easily disclosed to the employer that he had collected a fine on the roadside although it was not his JD. He could have done this via telephone or mention this to his superior officer or someone in the fines department to prove that he was genuine in his intention in taking the money for fine purposes only. This then leaves only one plausible explanation that there was merits in the allegations and written statements given by Mr. Evans to the employer during the course of their internal investigation. I also find that the employer's LTA Board paper dated 29 July 2010 which was part of the grievor's submissions (Exhibit 5) stated that the fine was something like $7.00. This was beyond and above the amount that Mr Evans was required to pay as a fine and in fact the employer's HR Department had recommended in that same Board paper that the money be returned to Mr Evans after the case was disposed off. Such vital piece of evidence leaves no doubt in my mind that Mr Fabiano Vakadranu deliberately took money for his own personal gain from Mr Evans in the execution of his public duty. This is a very serious crime or clearly deemed to be a serious misconduct.
7.22 In that regard, such act of dishonesty in the execution of public duties allows the employer to have valid reasons or lawful cause to justify summary dismissal of an employee. The employer is entitled under s33(2) of the ERP to point out clearly the areas of breach causing summary dismissal which they did justly in the termination letter. In that regard the summary dismissal of Mr Fabiano Vakadranu was lawful.
7.4 Where the allegation of unfair dismissal is concerned, the Employment Relations Court in the case of Carpenters Fiji Limited v Isoa Latianara ERCA No. 7 of 2011 has made it abundantly clear that once a serious (or gross) misconduct is established in substance, then procedural fairness (for hearing, mitigation or appeal) is not required for purposes of a summary dismissal. Isoa's case is clear that once "lawful cause" for gross or serious misconduct is established by the employer there is prerogative of the employer to waive that right and proceed to immediate termination.
7.5 I reiterate and stand by my decision to find justification for gross (serious) misconduct in this matter. The overall merits of the case prove that the employer had a legitimate basis to invoke summary dismissal against the grievor.
7.6 In this grievance, there was no evidence that the actions of the employer was such that the grievor was caused humiliation or any physical or psychological harm. I agree that through loss of employment without notice would put strain on the grievor's source of livelihood. But when lawful cause is proved, then the fault and actions of the employer in not according right to hearing is no longer the test for unfair dismissal. This is because section 33 of the ERP prevents unlawful and unfair termination allowing for only "lawful cause" for exercising summary dismissal within one or any of the five permitted grounds therein. Here, summary dismissal was justified, substantially and procedurally on the merits of the case that proved there was serious misconduct by the grievor when he took money from a member of the public on the pretext of fines when he was neither authorized nor given a job description to do this. He also failed to disclose or deposit the money with the employer to prove he had no intention to defraud by keeping the money at home.
8.0 Decision and Orders
- The Employer's decision to terminate grievor's contract of service pursuant to s33(1)(a) of the ERP is declared lawful and fair.
- Accordingly, the grievor's claim for unlawful and unfair dismissal is dismissed forthwith.
- No remedy including reinstatement is awarded to the grievor.
- The parties will bear their own cost in this matter.
DATED at Suva this 18th day of April 2013.
LEGAL TRIBUNAL
[1] Shell Fiji Limited And Fereti Filipe v Benjamin Johnson Civil Appeal No. CBV No. 008 of 2010 (19 October 2011).
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