|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Fiji Employment Tribunal |
IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA ERT No. 48 of 2011
BETWEEN:
AKUILA TIKODUADUA
GRIEVOR
AND:
SUVA CITY COUNCIL
EMPLOYER
Appearances:
Mr. P. Rae for the Grievor
Mr. Lajendra for the Employer
Date of Hearing: 5th, 6th & 13th August 2012
Date of Judgment: 29th May 2013
DETERMINATION OF THE EMPLOYMENT RELATIONS TRIBUNAL
Employment Relations Grievance
[1] This grievance was registered with Ministry of Labour on 14th January 2011. Mediation was attempted on 16th February 2011 but was not successful. The mediator referred the grievance to the Employment Relations Tribunal (or "the ERT") on 22nd February 2011 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:-
"Akuila Tikoduadua vs Suva City Council over the alleged unfair termination of Mr Tikoduadua who is claiming reinstatement"
Cause Before the Employment Relations Tribunal (or "the ERT")
[2] When the matter was called before the Hon. Chief Tribunal, he had directed the parties to file their respective Preliminary Submissions on 30th March 2011. The Employer, Suva City Council (or "SCC or the Council") had filed their Preliminary Submissions on 28th April 2011 and the grievor filed his Preliminary Submissions on 23rd May 2011. The hearing of the matter was conducted on 5th, 6th & 13th August 2012. On that day, the employer called four witnesses. The grievor was the only witness from his side.
Background to the Claim
[3] The grievor, Mr. Akuila Tikoduadua, who was an Enforcement Officer with SCC is claiming that he was unfairly dismissed on 29 December 2010 by his employer through a letter of termination. This letter alluded to his instant dismissal in accordance with a "...stipulated dismissal provisions of Sections VI (e) i, ii & iii of the Master Agreement between the Suva City Council and the Suva City Council Staff Association"... The grievor had submitted through his Preliminary Submissions dated 23rd May 2011 that as member of the SCC Staff Association, his employment was subject to a Collective Agreement between the Association and Suva City Council.
[4] From the start, there was no contention that the allegations over which Mr. Tikoduadua was dismissed and the reasons for dismissal were contained in the suspension letter (Exhibit 13) and the dismissal letter (Exhibit 18) [as per Grievor's Closing Submissions at Clause 5.0]. Suffice to say that the main claim of the grievor is centered on the substantive matter as to whether or not there was just, fair and lawful cause to terminate Mr. Tikoduadua summarily and whether the procedural fairness was accorded. Clearly, it was the grievor's assertion that he had been only notified formally of the employer's decision to dismiss him when he had received his termination letter delivered at his home on 13th January 2011. Prior to that, he had been suspended on half pay pending investigation on the 18th November 2010. He claimed that he been interviewed only once prior to his suspension where he was told to respond to the allegations in writing, upon which he was then dismissed. He claims that he was neither interviewed during any investigation process conducted after his suspension, nor he was called to any disciplinary hearing, or was given an opportunity to refute allegations or probe any evidence against him. He is also claiming that he was not accorded an audience with the decision-maker, the CEO either to mitigate the alleged misconduct or the penalty (as per Grievor's Closing Submissions at Clauses 2.0 and 3.0).
[5] The employer's primary reason for dismissing Mr Tikoduadua related to SCC having serious concerns with the grievor violating established
rules and procedures for revenue collection. They argued that revenue collection did not fall within the ambit of the Job Description
for any Enforcement Officer (Exhibit 4). The actual facts that bring about these allegations have nexus to one particular incident where it was not disputed that Mr. Tikoduadua
had received a sum total of twenty dollars ($20.00) from four roadside vendors. The grievor had established that these vendors were
illegally selling mangoes in front of the Fiji Bitter Office in Walu Bay, Suva without a permit. Five dollars ($5.00) was collected
from each of the vendors who appeared to have breached the Local Government By-Laws which, the grievor as an enforcement officer had a duty to assist his employer in enforcement and regulation. SCC maintained that
Mr Tikoduadua neither had the authority nor powers to collect monies from the roadside vendors in execution of his duties as an enforcement
officer. In turn, the grievor maintained that he had proceeded to collect the revenue for SCC at the vendors' request to merely assist
them and that he was authorized to collect such revenue in his capacity as an Enforcement Officer based on some unwritten procedures.
He further claimed that he had intended and in fact, had paid these monies into the Council's revenue in the usual manner for which
a receipt was issued by SCC. He submitted that he was within the stipulated time-frame to raise a receipt in terms of what he again
regarded to be unwritten procedures or practice of the employer.
Evidence of the Employer
[6] The Employer called four witnesses:- their oral evidence is summarized as follows:-
Employer's Witness One: Mr. Saimoni Takape
He told the Tribunal that he was the Senior Enforcement Officer with SCC employed for 24years. He was in this position since 2007. As a Senior Enforcement Officer, he was required to carry out enforcement of boundaries covered under the Council's by-laws where he performed duties such as removing illegal vendors from the streets, serving them with 24 hour notices and attending to other law enforcement duties within the city of Suva. He said he knew Mr Tikoduadua who was his former workmate in the Legal Section as an Enforcement Officer.
He confirmed and recalled an incident that occurred on 12th November, 2010, when a complaint was received by him in respect of Mr Tikoduadua. He said that on that particular day, he had received a phone call from a lady, who was a rural vendor complaining about a Council officer in relation to collection of money from them on the 11th November. The lady was alleging that the Council officer had collected $20.00 from the four vendors selling seasonal fruits in front of the beer factory at Walu Bay. The basis of the complaint was that the Council officer had demanded $5.00 each from the four vendors to pay for the street space they were using. This vendor further told the witness that the officer who had attended to them had assured that he would receipt the money from the Suva Market and bring their receipt to them before 8pm on the 11th November but this did not eventuate. Hence this caused the vendor lady to come to Market Master on Friday morning and enquire about the receipt.
The witness further testified that after the complaint was received he instructed one of the enforcement officers, Mr Ravinesh Raj to go to Walu Bay and check or ask the complainants to come to Council office for an interview in relation to their complaint. He said Mr Ravinesh went out and brought the lady complaining against the grievor to the head-office whereby they proceeded to interview those involved in the presence of the Council lawyer. He said that there were no written statements obtained as the vendors were interviewed verbally in the presence of the Council lawyer and Ravinesh Raj. A Report was prepared after the interviews were concluded (this was tendered and marked as Exhibit 1). Exhibits 2 and 3 were also tendered in by this witness. He then identified for the Tribunal the Job Description (or "the JD") for Enforcement Officers. This was tendered and marked as Exhibit 4. He clarified that in relation to the complaint that was received by the Council in terms of collection of monies from the roadside vendors by an enforcement officer, in accordance with the JD, no Enforcement officer was not allowed to collect money from any street vendor. He said the normal procedure is that enforcement officers are required to advise illegal traders to go to the Council in order to obtain a proper street permit.
In Cross-examination, he clarified that the greivor was directly working under another officer by the name Mr. Suresh Rattan. When asked why he had intervened and investigated the complaint and not Mr Rattan, he replied that he was asked by his superior to do so.
When asked if he did not like the grievor he replied "yes". When probed whether he recalled an incident that occurred while the interviews were being conducted, he gave his response that "whilst we were still interviewing the ladies, the complainant, Akuila approached ... the city lawyer and... I had chased him out of the office...". He further said that "I just told him that he was...cunning person... I just told him to go out of the office, while we are interviewing the ladies..." When the witness was asked by Mr Rae why he had chased the grievor out of his office when really the complaint was about him and it would have made sense to allow him to be there to give an explanation because it had to do with only $20.00 for which Aquila was eventually dismissed, and that the grievor was approaching with the receipt that could have resolved the matter, the witness replied, "...he should have waited if needed to give any evidence... he would be called in by the lawyer but instead he walk straight to the office..."
Mr Rae then put to him that he had threatened Akuila with violence and swore at him where the grievor had to run for cover, which the witness denied. Mr Rae also asked him to explain why he had made reference to Akuila's previous conduct in Exhibit 1, to this the witness responded: "Yes by record he was terminated in 2000 for doing the same thing". The witness explained that this related to an incident that occurred 12 years ago where he was terminated but subsequently reinstated. He could not tell why the Management reinstated the grievor and insisted that the answer would be in personnel file.
Mr Rae further probed the witness as to the previous differences or what he called animosity between the grievor and himself. Exhibit 5 was shown to the grevior which was in relation to a Memorandum dated 1st June 2010 in terms of a complaint made against the witness by the grievor. The witness maintained that this was not the reason why he had chased the grievor out of his office. He further denied that he was not personally seeing to the investigation process because of his previous animosity against Akuila. He confirmed that market master and the lady vendor had called him inquiring about the receipt and why they called him was not a personal issue but rather to lodge a complaint that a receipt was not issued by Mr Tikoduadua. He restated that because a complaint was made in this instance by the lady vendors, there was an inquiry that eventually led to the grievor's dismissal. He confirmed again that Mr Raj had brought one lady into the Council office and conducted the interview. Hence he could not explain Exhibits 2 and 3 which were the written statements of the lady vendors.
Employer's Witness Two: Mr. Setoki Ceinaturaga
This witness stated that he has been employed with SCC for 5years as a junior clerk. When asked to relate the events of 12th November 2010, he said that it was a Friday afternoon between or around 4 o 'clock when he was getting ready to go home, this is when Mr Akuila came to him in regards to making a manual receipt for $20.00. He stated that the grievor had asked him to backdate the receipt to the 10th November; why, he didn't know. However, he attempted to explain that, at the time he was a junior clerk, everything was new to him and when he was told to do something, he simply attended without questioning anyone. Later he was investigated for this.
He testified that the receipt copy shown to him and tendered in evidence as Exhibit 6 was the one he had issued on 10th November 2010. He confirmed he made the receipt for "ILLEGAL SELLING OF MANGO" as annotated therein. When asked whether he found something irregular when he was asked to backdate the receipt to the 10th, the witness testified that "...the thing is it was on the 12th when I received money and asked by the superior to backdate it to the 10th, I know it was not appropriate for me to do but I have to do it because am a junior clerk that time, I could not do much..."
In cross-examination, the witness admitted that he was parking meter junior clerk allowed to issue receipts for towing of vehicles generally. In that regard he was not allowed to make such nature of manual receipts but he still had made it upon instructions from his superior, being the grievor even when the cashier was closed. He attempted to explain that when close of day approaches in the noon and anyone is in a hurry to leave for home, then they have to come to him which is the reason he issues a manual receipt. He had dated the receipt as "10th November" because a superior officer, which the grievor was to him, had asked him to do so although he knew it was wrong thing to do.
He then clarified that in a receipt book, there would be three copies of the receipts: - the yellow, top or original went to the grievor; the blue would be issued to the cashier with the money which is put on her desk if the cashier is closed; and white copy is retained in the receipt book. When asked whether he had made alteration to the any of the copies retained by the Council, he stated that he could not recall. This is when Mr Rae pointed out some anomalies in the receipts in terms of the dates as shown in the sequence numbers. The witness agreed it was altered although he did not do it. The witness maintained that he had issued the receipt with 10th November date as per Exhibit 6. Mr Rae then produced and tendered another receipt which had alternation and/or notation therein: this was marked as Exhibit 7. The witness agreed that he had made two receipts with the same transaction (and same amount) although he had received only one set of $20.00 from the grievor.
Employer's Witness Three - Mr. Ravinesh Ravin Raj
This witness stated he was employed by SCC as an Enforcement Officer for 3years. His responsibilities as an Enforcement Officer required him to undertake inspection of illegal operations around Suva, such as removal of illegal vendors from unauthorized sites including, issuance of notices under the Local Government Act. He recalled that the grievor was his former work colleague. He said that when he had started in the Council in 2005 they had worked together in the enforcement section, as the grievor was also an enforcement officer at the material time. He said that he recalled an incident arising out of Mr Tikoduadua's duties as an enforcement officer that dated back to 12th November 2010. He said it was a Friday, and he was doing inspection around at the Waimanu Road area when he had received a phone-call from the Senior Enforcement Officer, Mr Takape in relation to some vendors selling illegally in Walu Bay area near the Fosters Group building. Due to unavailability of transport he was not able to attend to that report that morning; however, when he was given transport in the afternoon at around or after 2pm, he told the Tribunal that he went to check and noted some vendors were selling mangoes.
He said that he also noted the market master was at the site taking statements from the vendors. The market master informed Mr Raj that one of SCC officers had collected some money from these vendors and had authorized them to sell at the site. Mr Raj told the Tribunal that he had instructions from his superior to attend to the vendors and bring them back to the SCC office to provide their statements. Therefore he got hold of one of the Fijian lady, whose name he could not recall and accompanied her to the SCC office. While they were in the car park, Mr Tikoduadua approached this lady. He could not understand what they were saying to each other as they were speaking in the Fijian language. He then took the lady to the solicitors' office, at Level 2 and in the presence of the city lawyer and senior enforcement officer he took a statement of the (Fijian lady) vendor as to what had transpired.
The witness testified that he took a statement of the vendor who stated to him that $20.00 was given to Akuila Tikoduadua the previous day in the afternoon by four vendors while he was doing his round in the area. Mr Tikoduadua had demanded money from the vendors informing them that it was illegal to sell at the site and that if they wanted to continue selling, then they had to pay $5.00 each. Since there were four vendors present he collected $20.00 and when the vendors enquired for a receipt, Mr. Tikoduadua had replied that he would produce it the next morning. Mr Raj further told the Tribunal that while he and others were still in the process of taking the vendor's statement, Mr Tikoduadua stomped into the office which resulted in a verbal dispute between him and the Senior Enforcement Officer, Mr Takape.
Mr Raj admitted that a written statement of the Fijian lady was recorded by him and that was in form of Exhibit 2 before the Tribunal. Subsequently, Exhibit 3 was also provided by another vendor which the witness confirmed was a statement obtained by the market master. He also recollected being called by the Investigation Team to give evidence pertaining to this where he informed the Tribunal that he prepared a report dated 15th November 2010. This was admitted in evidence as Exhibit 9.
When asked by Mr Lajendra that as an enforcement officer, what course of action is usually taken when dealing with illegal vendors, Mr Raj explained that he is required to first check for permits. If such vendors do not have permits on site, then they have to be removed immediately. When asked whether enforcement officers could collect money from vendors at the road side, he answered:"No". When further asked that it has been alleged that Mr Tikoduadua collected $5.00 from four vendors, this witness told the Tribunal that in respect of procedures this was an irregular procedure. He clarified that what should have been done was to have the vendors removed and advised to see the market master or the Legal Section for proper permits, but in this case, the officer had instead collected money from the site allowing the vendors to sell.
During cross-examination, Mr Rae sought clarification from the witness as to the fees for obtaining permits in order sell produce legally. The witness replied that for a day, the fees would be $32.50. In terms of the significance of $5.00, he responded that this related to "space fees". When asked if there was anything wrong with the vendors seeking assistance from the officer to do payments and bringing back the receipts, the witness responded: "No I would not take the money".
When probed further whether he would extend any help to such vendors who would not be able leave their produce to go to the Council office at the risk of losing the same, the witness maintained that he would only help by advising the vendor to go straight go to the market which is near to them while he would safeguard the produce at the site. When insisted by Mr Rae that if money was collected despite this is not a procedure used by this officer, the witness maintained that "...first of all I would not take the money, it could be anything, I could have pocketed the money, or I wouldn't make payments..."
He said the money has to be paid to the cashier and receipt obtained. He said in terms of written procedure he relied on the Job Description for Enforcement Officers. He told Mr. Rae that while JD does not say that enforcement officer cannot collect revenue for street vendors, it also does not say that they can.
Employer's Witness Four - Mr. Jawahir Lal
This witness gave evidence that was employed by SCC for 23 years, where he has been holding the position of Training and Employment Relations Officer for last four years. He was responsible for coordinating and conducting training for SCC employees whilst also being responsible for employment relations matters relating to counseling, investigations and dealing with allegations. He knew the grievor where he said he was appointed as the Chair of the Investigation Team in relation to the case against Mr Tikoduadua. He tendered in Exhibit 10 which he established was a Memorandum from the Chief Executive Officer confirming and appointing an internal investigation team that would be carrying out the investigation into the alleged incident against Mr Tikoduadua. Through Exhibits 11 and 12, he tendered the appointment letters for other officers that made part of three-member investigating team. He said during the appointment of the investigation team, the grievor was still at work.
He was then shown Exhibit 13 which Mr Lajendra reminded him was a suspension letter given to Mr Tikoduadua which essentially stated that he was suspended from duties but this was given to him on the 18th at 4.30 after the investigation team has been set up and Akuila's preliminary interview had taken place after lunch. The witness clarified that since it was an urgent issue to be investigated after receiving the appointment letters, he had called a meeting for the other panel members to look at terms of reference that was given to them where they had requested the city lawyer to ask Mr Tikoduadua to be at the preliminary interview on the same afternoon at 3 o'clock. The witness testified that the grevior attended the meeting and this when the allegation was presented to him to allow him to offer his side of the story as to why he had received money from the roadside vendors. He said after looking at those scenarios, then arrangement was done for matter to be investigated further, therefore suspension letter was prepared and Akuila was henceforth suspended from duties.
He said in the course of further investigation they wrote to the grievor through Exhibit 14. He testified that the grievor replied through Exhibit 15.
He said that the investigation team met again and after going through Mr Tikoduadua's response they called six witnesses including Akuila during the full investigation and then compiled a report and submitted to the Council. This was adduced in evidence as Exhibit 17. He confirmed that Exhibit 16 was the official receipt made by the cashier.
He further told the Tribunal that the findings of the investigation team was that the money was received by Mr Tikoduadua on the 11th from the rural vendors and the Council cashed it on the 19th, and part of the findings is that Akuila did not follow the procedures on handling of revenue. He received the money on the 11th but paid the money through manual receipt on 12th after the cashier had closed and instructed junior clerk Setoki to backdate the receipt to 10/11/10. It was also revealed that Akuila could have deposited the money into the cashier on Friday morning but he did not do so. The team had noted that Mr Tikoduadua's job description did not permit collection of money as part of his duties. He then tendered the termination letter issued to the grievor as Exhibit 18. The termination letter made reference to a certain section of the Master Agreement which he confirmed was the relevant section of the Master Agreement for purposes of this dismissal. This was tendered in evidence as Exhibit 19.
The witness told the Tribunal that by virtue of 23 years of service with the employer he had access to the grievor's personnel file kept with SCC. He said there were a number of times when Mr Tikoduadua had been suspended and investigated previously. On one occasion he remembered seeing a note stating he had been terminated from his employment. He said after some presentation by the General Secretary of the Association and Management meetings, he was given back his employment on the undertaking that in the future the officer would not do any activities irrelevant to his work considering the plea he had taken on humanitarian ground and other things. He tendered in Exhibit 20 which was termination letter dated 2nd October 2000.
In cross-examination he agreed that the previous termination occurred some ten years ago and that he was reinstated on 6th November 2000 (Exhibit 21). He further agreed that the grievor was cleared off all the allegations. He agreed that that the grveior was not present during the time his team had conducted interview with other witnesses. He maintained that Akuila was interviewed on 18th in presence of Association General Secretary, Mr Krishna but not subsequently as the team had considered his written explanation which was same as what he had said during his interview. When asked what were the procedures for receiving money by the cashier, he said he did not know. When pointed out by Mr Rae that the CEO had mentioned some procedure in the suspension letter (Exhibit 13) he agreed that the grievor he was required by the procedures to pay the same day or the very next day. While he agreed that Aquila had received money on the 11th and raised receipt on 12th November, he maintained that there was still breach of the CEO's procedure. He said in this case it was brought to the Committee's attention that the manual receipting was done in the afternoon of the 12th, and not in the morning as was appropriate. This was confirmed by the investigating team via the receipting clerk. He admitted that he could not explain why there were duplication of receipts issued by the clerk or why the cashier took a week to issue a proper receipt.
Mr Rae then probed him regarding the process leading up to the termination of the grievor. The witness agreed that his report to the CEO was dated 26th Nov 2010 and Akuila was dismissed on 29th December, 2010, after more than a month's suspension. The witness explained that the reason why the dismissal took this long was because normally when the report is received by the CEO, it is referred to the Disciplinary Committee who looks into the report findings and thus make their recommendation to the CEO for further action. The CEO makes the final decision as to what would be the fate of the suspended officer. He said this process takes about a month.The witness agreed that he did not give his report to the grievor for his response. He said the allegation was disclosed to the grievor during his preliminary interview and his task was to provide findings to the CEO. Mr Rae maintained that the grevior was given the report but on 21/02/11, after the grveior was terminated. When asked whether the employer, SCC was consistent in how it dealt with employees for allegation relating to financial dealings, and whether there a policy, the witness replied that different procedures were in place where first warning and second warnings are being issued as per Master Agreement. In cases where the management found the employee guilty and needs to be terminate then termination letter is issued. He said, everything was done in compliance with the Master Agreement between Suva City Council Staff Association and Suva City Council
Evidence of the Grievor
[7] The Grievor, being the only witness from his side give sworn testimony where the summary follows:-
He told the Tribunal that he was employed by SCC for 21 years as Enforcement Officer prior to his dismissal. He had worked in this position for 10 years.
In terms of the incident of 11th November 2010, he testified that he saw some ladies selling mangoes on the footpath in front of Fiji Bitter in Walu Bay. He stopped his car and went to the ladies asking whether they had a permit or not. The ladies told him that they did not have any permit. He then told the vendors the procedures, where they were required to go to the Council office and pay for the space for selling seasonal fruits. The ladies asked him for the office location and the witness told them that it was beside the FINTEL office. The ladies informed him that they did not know because they had come from Nadi. The ladies then asked him if he could pay for them. The witness said he agreed on the basis he would give the receipt same day or when the ladies came back to sell in Suva. He then asked the ladies if they would be coming back there tomorrow and they told him: "No". The grievor testified that this is when he told the ladies that if they came back next week, they could apply for their permit or pay for their space, and in doing so, they could come and see him for the receipt.
He then testified that when he reached the office, the cashier was closed, whereby he gave the money to the parking meter section for receipting by a new staff (and not Setoki), however he had collected the receipt next day from Setoki.
He also said that the vehicle he was driving was taken by someone in the Council and this was the reason he never went back to those ladies the same day or in the evening as he also was late for his kids who were waiting for him in the school. The next morning on Friday (12th Nov), he said he was getting late to go to the Valelevu Court to attend to a Parking Meter case. When he returned to the office he attended to other duties such as going to Cunnigham to clear all the street vendors selling on the street. It was in the afternoon, this grievor stated that he went to the parking meter section, when they wrote him the receipt. Thereafter he testified that he went up to his office and put the receipt on the table. When he came down he met this lady with Ravinesh and he asked the lady what had happened. The lady had told him that she was looking for Akuila. This is when the grievor informed her that he was Akuila and asked her to wait upstairs informing that he had the receipt with him. He stated that he could not give the receipt straightaway as he was on his way to the shop to buy bun for his afternoon tea.
He said when he returned and asked the front desk lady if any lady had come, he received a reply that she was inside the city lawyer's office. The grievor told the Tribunal that he went inside his office, retrieved the receipt and went straight to the solicitor's office and gave the receipt to the lady. He said when he gave it to the lady, Saimoni Takape chased him out, who also swore at him in the Fijian language, whilst pointing at him saying: "Get out, get out".
He said that he had the receipt on him when Mr Takape chased him out of his office. He stated this is because of the on-going difference between the two gentlemen. The grievor told the Tribunal that whatever he had recounted were exactly the same events what he had told during his interview including what he had provided in his written response to the employer.
He confirmed that he was interviewed by Mr Jawahir Lal and his team on 19th Nov 2010 whilst in between that time from 12th - 19th Nov 2010, he was still at work, performing normal duties. He also agreed that he had received his suspension letter from the investigating team on the 18th November. He said he was called to work on 19th November to give his interview and later SCC staff served him the suspension letter at his home, following which he then responded in writing within time. He told the Tribunal that he was not called by the SCC management to discuss his matter nor he appeared before the Disciplinary Committee.
He confirmed that his dismissal letter was signed by the CEO dated 29/12/10, and between 22/11/10 to 29/12/10, there was no further discussion with the employer. He said his dismissal letter was given to him by a staff at the roadside instead of being delivered at home. He said he did not receive any outstanding pay or leave payment as all his wages was up to date when he was dismissed. Subsequently, he said he had received a letter from the Council on 21/02/2011 together with the investigation report. Since his dismissal he testified that has not found another employment. He also told the Tribunal he wanted to return to his job.
During cross-examination, he was paused procedural questions pertaining to his duties an Enforcement Officer. He admitted that when someone is selling fruits illegally on the streets, they should be asked to leave immediately if selling without a permit. He agreed that the first requirement is to check for a proper permit or advising the vendor to obtain one if they don't have a permit.
In this instance the grievor stated that he had asked the ladies to stop from selling their produce but when he had arrived to his vehicle they had called him again and thereafter asked him to pay for their permit because they had come from Nadi. He said this is the reason he attended to their request as they did not know the Suva, SCC office location. When asked whether he was aware as an enforcement officer, he not authorized to accept money from outside vendors, he said "No, he was not aware".
He admitted that he had collected $20.00 from the four vendors which was $5.00 each for the space fee. When asked about how a permit could be issued, he stated for selling fruits, the vendors could pay to the cashier without a permit that was approved by the Director Finance at that time. He was then shown Exhibit 4 (Job Description) and agreed that none of the duties therein alluded to collection of monies. He responded in affirmative when further probed that under paragraph 8 of the JD, there were in fact six duties to be performed, where none of those duties related to collection of monies from roadside vendors.
When asked if he had seen the JD before, he responded: "Yes when I started employment with the Council" and further added that that he was well versed with the job he was suppose to perform.
His evidence hereon was that he had not told anyone at the Council about the money he had collected. He said the cashier was closed on Thursday. Next day, on Friday, 12th November, he was in Nasinu Court till 2pm and after his final duty at about 3.30pm he then raised the receipt although he had paid the money to someone on Thursday.
When probed further, he agreed that according to Setoki's evidence it was Friday 12 November at about 4 o'clock when he had asked him to do a manual receipt: prior to that he did not mention to anyone about collecting monies from the vendors.
He said he had never asked Setoki to backdate the receipt to 10th November and that he did not check the receipt date when he was issued a receipt. He said Setoki was in front of him when the receipt was raised. Mr Lajendra told him he could not have done this on the 11th November as Setoki was not at work on the day. While he denied that he had taken the money to Setoki only after he had seen the vendors with Mr Ravinesh Raj, he was sure about giving someone money on Thursday and the receipt being issued on the 12th November in the noon.
When asked to refer to Exhibit 21, a letter dated 6/11/2000 written by the former CEO, where it stated: "...This letter serves as a final warning....................", the grievor confirmed he did not question this particular letter as he had given it to the General Secretary at that time and informed him that it was his final warning letter.
In re-examination, it was clear he was not aware of the time limit placed on warning letters issued by the employer. He maintained that space fee could be paid without having to apply for permit which was a practice direction set down the Director Finance.
Final Determination
[8] To better understand the grievance matter before me, I am setting out the essential elements that the grievor has submitted through his preliminary and thereafter closing submissions where he is claiming that the employer has failed to establish lawful cause or reasons for his dismissal on the basis that:-
[9] As a preliminary remark, while at all times the grievor is entitled to bring a claim to the Ministry of Labour through Form ER 1, the Tribunal has the jurisdiction and duty to ascertain the merits of that claim to be properly deemed as an employment grievance under s4 of the ERP. In any employment matter, it is the established practice that the onus of proof is the burden of the employer. It is also true under s231 of the ERP that the rules of evidence are not strictly applied and "...Tribunal may accept and admit evidence as it thinks fit". Keeping this in mind, the Tribunal is required to act fairly in all proceedings (s216 of the ERP).
[10] To that end, after a careful analysis of the evidence, it is my final determination that the grievance here pertains to the employer investigating a certain complaint received by street vendors against the Grievor for allegedly demanding and obtaining money, for which they were not given receipts as promised by the grievor. This was clearly the basis of the two complaint letters (Exhibits 2 and 3). For example, in Exhibit 2, it was stated that "...he demanded five dollars from me to be paid as fees for selling. I gave him $5dollars and he said to give the receipt at 8.00pm yesterday..." (Underlining is my emphasis only). As I understand, each vendor had paid separately (a fact not disputed by the grievor). Consequently the promise for a receipt by the grievor would have been made to each vendor. I will discuss this evidence in more detail in due course.
[11] Suffice to say, the employer submitted that demanding and obtaining money by an enforcement officer was illegal in terms of the Job Description (JD) of the enforcement officers (Exhibit 4). The JD within its literal and natural meaning was very clear that enforcement officers had no powers or duties to collect revenue from illegal street vendors. The only revenue mentioned therein was collection of debt by legal means. I understand this is from the ratepayers or debtors. In that regard, the natural meaning of the document (the Job Description) is what this Tribunal has the latitude to objectively base its views. When it does not state any duties and responsibilities explicitly, the silence in the document cannot be interpreted to mean, it may or can be allowed. It simply means those are the only duties that the enforcement officers are authorized to perform or carry out.
[12] On the other end was the CEO's suspension letter which Mr. Rae has aptly pointed out alludes to a certain acceptable approved procedures and this was clear in the wording of that letter, where it stated: "...You are... aware that the procedures pertaining to such payments...." The employer had alleged that the grievor had breached this procedure when he had not paid the revenue collected and raised a receipt within the reasonable time stipulated by the employer. He also failed to provide the receipts to the four vendors whom he had indisputably collected $5.00 each, or in sum total, $20.00. Undoubtedly the JD prohibits an enforcement officer to collect revenue from illegal traders in the course of their regular enforcement duties and here it seems to me that the CEO in the letter was referring to the procedures when generally any revenue was collected. The letter does not say that the grievor, as an enforcement officer was given authority to collect revenue on the roadside. I interpret this letter to be a mere reminder of the procedure for revenue collection in normal circumstance. The employer submitted (and such was the evidence) that the money was not remitted to the SCC coffers immediately and receipts were not issued to the ladies at the earliest time possible, being the same day or by the next morning when in fact revenue was collected: this was then deemed to have breached the employer's revenue collection procedures.
[13] Mr Rae further suggested that the JD was obsolete. Naturally then, Mr Rae was proposing that it should be regarded invalid, with no basis to assess the legality (or illegality) of the grievor's actions as opposed to the un-codified but acceptable practice as stated in the CEO's suspension letter. I am not entirely persuaded with this argument. As I have said, nothing in the JD was ambiguous or widely open to the grievor's own interpretation to include revenue collection at the roadside from illegal traders. Mr Tikoduadua also gave evidence that he was well versed with his duties under the JD. The procedure thus mentioned in the CEO's letter cannot be inferred to include authorizing enforcement officers to collect revenue at the roadside. All it does is to lay out the procedures when revenue is generally collected.
[14] In fact, in my opinion, the CEO's procedures, which are unwritten in nature, are in essence the only saving grace for the grievor to base his claim on. Mr. Rae argued that the grievor was still allowed time till close of business on the 12th November, that is, the next day to raise a receipt. The grievor testified that he had raised a receipt eventually after he had time from his usual duties and that the receipt was in fact with him when the complainant came to the SCC office on the 12th November 2010 on or about 3.00pm or thereafter. To test this against the evidence of the employer, I have account of four witness' testimony, which I will analyze very shortly. In nutshell, the employer has attempted to justify that Mr Tikodudua's attitude and delay in not paying the revenue to SCC immediately (and thus raising the receipts appropriately) was in itself an indication of his illegal transaction with the vendors where he had obtained the money for himself, rather than for the employer. As expected, the aforesaid allegations against the grievor provided a basis to initiate an investigation by the SCC Investigation Team, particularly on the premise of the complaints lodged by the vendors and the grievor's JD that did not empower him to collect revenue. Thereby, the employer making a decision to suspend the grievor on half pay pending further investigation.
[15] At this stage, it is prudent to state that I did not find the existing personal difference or conflict between the grievor and the senior enforcement officer as a basis to unjustly initiate an investigation and subsequent decision of the employer to terminate Mr Tikoduadua. It seems to me, that it was by default that Mr Takape was in the middle of the investigation process as he was the officer in the office on the day when a phone-call was made on behalf of the vendors by the market master enquiring about the receipts. Whether or not his past feelings and animosity influenced further investigation is hard to pinpoint although it is irrelevant to this grievance matter on the strength of the independent source of complaint received against the grievor. This was the actual basis of the investigation: the lady vendors who were complaining they did not receive their receipts despite they had paid for the space fee ($5.00 each).
[16] After almost a month's investigation process, it was pronounced by the employer through their letter of termination (Exhibit 18) that the Grievor's conduct had breached their procedures in terms of the job description of the enforcement officers which did not empower or give authority to obtain or collect revenue at the roadside.
[17] Clearly SCC had appointed an internal investigation team to compile a report (as per Exhibits 10, 11, 12, and 17) after which the CEO made his final decision to terminate the grievor which he carried out under a dismissal provision pursuant to Sections VI (e) i, ii & iii of the Master Agreement between the Suva City Council and the Suva City Council Staff Association"... This provision is laid out in entirety as follows:-
(e) "DISMISSAL
The employer will not dismiss an employee except in the following circumstance:-
[18] This is a case of summary dismissal under an explicit provision of the contract of service which was not in contention. The first issue for this Tribunal is to test is whether or not this summary dismissal was lawful in terms of the merits (lawful cause) of the grievance and whether or not it was in compliance with the ERP 2007 provisions for summary dismissal. 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. I have to state that I really 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 are clearly outlined therein. In this case, the grievor was summarily dismissed by his employer pursuant to the statutory provision of s33(1)(a) of the ERP based on a public complaint. Here, the facts allude to the employer utilizing a summary dismissal provision in the Collective Agreement. There was no issue at all as to its legality or validity under the salient provisions of the ERP 2007. Therefore I will accept that this was something mutually accepted by the parties. Other than comment that the three grounds for summary dismissal in the Collective Agreement are almost identical to sections 33(1) (a), (b), and (d) of the ERP where the test for summary dismissal remains the same in establishing lawful cause(s) [or reasons for termination], I will not venture too much into the law.
[19] When establishing "lawful cause" as required under section 34 of the ERP 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 binds the employee to a good faith employment relationship by relying on their contract of service as well as rules, policies and procedures regulating acceptable code of conduct including the types of offences that may lead to appropriate penalties such as summary dismissal. In this matter, there was no disagreement as to the existence of such Code of Conduct in the Collective Agreement that governed the employment relations between the parties in terms of what sort of (mis)conduct could attract summary dismissal. Under the "SUSPENSION" clause the Collective agreement also permits the employer to suspend an employee on half pay pending further outcome of the investigation and there is no time limit placed on this.
[20] The employer further supplemented their defence in justifying the termination by making reference to the grievor's job description (JD), which Mr Rae maintained was obsolete. I had no evidence how this was so. In fact, the grievor gave evidence that he was aware of the JD since he had joined the employer and that he was well versed with the contents therein. In that regard, I will treat this evidence to be credible given that the JD complemented the grievor's contract of service by clearly demarcating his duties and responsibilities.
[21] In my opinion, the JD provided the parameters of an enforcement officer's roles and powers, particularly where allegations of "obtaining money illegally" from traders operating in breach of by-laws on the roadside is concerned. The grievor had accepted in his cross-examination that the JD essentially guided him to the procedures in terms of what he could do and not do in the execution of duties mandated under the by-laws that govern the work of this employer. In any given context, this cannot be taken lightly in this employment situation. The enforcement officer's duties when engaging with the public could attract the brunt of the law if the public member whom the grievor was serving, was found in breach of those by-laws. Here, the incident that eventually saw the grievor terminated, has genesis to 11th November 2010 when Mr Tikoduadua in the execution of his official duty decided in his discretion as an enforcement officer to assist illegal vendors by obtaining $5.00 each from four vendors. He said $5.00 is commonly paid as space fee. In his evidence, he had agreed that instead of removing the vendors from the site or guiding them to the Council to obtain a proper permit, he decided that he will take the matter into his own hands. Mr Tikodudua had in actual fact testified that he had obtained a total of $20.00 at the vendor's request as they had traveled from Nadi and he was merely helping them to pay for their space fee who were unaware of the location of SCC office.
[22] In terms of the grievor's position to support his claim of unjustified and unfair termination, I have to say that there were various anomalies in the grievor's evidence, with glaring contradictions as to how and why the money was really obtained. There was no contention that money was in fact obtained. But, the vendors in their complaint letters had stated it was "demanded" by the grievor and Mr Raj also testified that while he was taking the statement of the Fijian lady vendor, this is what he was told. The grievor, however, maintained that he was "requested" by the vendors to take the money for payment of space fee.
[23] Clearly the vendors had originated this grievance by way of voluntary complaint(s) to the employer when they did not receive their receipts. They were not influenced or pressured to come to the SCC but their interest was to seek their receipts which would have entitled them to continue selling their produce as legal street traders. Again I reiterate that the real necessity or rationale provided by the grievor as to why he had to go beyond his usual duties that is reflected in the job description was not convincing to the Tribunal. I am qualifying this by first, giving a benefit of doubt to the grievor that as he had claimed, there was, perhaps, some unwritten policy and procedures. He submitted that the CEO's suspension letter is proof that he had legitimate basis to bend his JD to collect revenue from illegal vendors at the roadside. Thus he claimed there was nothing illegal in the way he had collected revenue as he was authorized. The existence of such practice (written or not) was denied by the employer who completely relied on the JD to uphold their position.
[24] In that regard, the grievor could have presented to the Tribunal through some form of evidence, where collection of revenue is done in this manner. In turn, when putting weight on the evidence of the employer through two current enforcement officers, Mr. Ravinesh Raj and Mr. Saimoni Takape where both had testified that they never would collect revenue on the roadside it became unproblematic for this Tribunal to believe that no such practice was authorized by the employer. Hence there is a merit to suggest that the money was in fact demanded by the grievor as was the vendor's complaint. Further, Mr Takape and Mr Raj both testified that the first protocol is to ascertain whether or not the vendors were legitimate permit holders and then taking steps to remove illegal vendors if no permit was produced. Mr Tikodudua also confirmed this was the usual routine procedure when he was confronted by an illegal street vendor. Needless to say, whilst the longstanding difference between the grievor and Mr Tapake can be somewhat understood to reflect his bias towards the grievor (although, this was something which was not adequately proved to the Tribunal in terms of this grievance matter), I have to say, Mr Raj's evidence was independent, strong and credible.
[25] For instance, when Mr. Rae had put to Mr Raj whether or not anything was wrong with the vendor seeking assistance from the officer to do payments and bringing back the receipts, the witness had responded: "No I would not take the money". When probed further whether he would extend any help to such vendors who would not be able leave their produce to go to the Council office at the risk of losing the same, the witness had maintained that he would only help by advising the vendor to go straight to the market which is near to them while he would safeguard the produce at the site. When insisted by Mr Rae that if money was collected despite this is not a procedure used by this officer, the witness maintained that "...first of all I would not take the money, it could be anything, I could have pocketed the money, or I wouldn't make payments...".
[26] Mr Raj's evidence clearly indicated that the enforcement officers are not required to seek payment at the roadside nor they do so in their everyday routine, enforcement work. At least two enforcement officers testified to this. The grievor further affirmed the normal process is removal of such illegal vendors. Hence, the grievor's rationale to collect revenue, whether demanded or given by consent, again something which I give benefit of doubt to the grievor as the vendors were not before the Tribunal other that their written complaints, is not fully explained or properly defended by the grievor. Whilst the employer bears the onus of proof whether or not this was a legal transaction, there was no dispute that Mr Tikidudua had received the money in the execution of his duties as an enforcement officer. It is then, the grievor's explanation on which this claim is hinging.
[27] The other more pressing matter is the issue of receipt or receipts. One would expect at least four different receipts to be raised for $5.00 each. There was no contention that four individual vendors had paid Mr Tikodudua $5.00 each for space fee. That said, there was all this evidence regarding two different receipts raised for $20.00 and even one raised on the 10th November. The junior clerk, Mr. Setoki Ceinaturaga was called to stand to explain this so as there was some suggestion that the grievor had asked him to backdate the receipt to 10th November.
[28] Mr. Ceinaturaga had stated that he had complied to backdate the receipt to 10th November knowing it was a wrong thing to do. He attempted to justify that because at the time, he was a new recruit in a junior position, and a senior officer such as Mr Tikoduadua had instructed him to do this, he could not refuse or challenge the decision of Mr Tikodudua. There was no dispute that the actual transaction or exchange of money had taken place on the 11th November. The backdating of the receipt clearly does not help anyone, least of the junior clerk who obviously had nothing to gain by doing this. While this Tribunal can only comment that it is concerned with such unethical practice at SCC which gives the employer a bad image who is mandated to serve the ratepayers and the public, this is not the issue of contention emanating from this grievance claim. What is of importance and relevance is that there should have been receipts issued to all the four vendors for $5.00, being the payment for space fee. It was the grievor's counsel who had clarified that $5.00 is normally charged for space fee, hence the relevance of taking $5.00 from each vendor.
[29] When the receipting was not done in a proper manner, this draws me closer to finding the grievor culpable for demanding money for his personal gain. While this was something overlooked by the employer's counsel to test why the grievor had raised only one bulk receipt for $20.00, I am still tasked to fairly ascertain whether the explanation to justify the grievor's conduct is reasonable and credible to justify his claim of unfair dismissal. This is despite the onus of proof is on the employer. As I have said the entire claim hinges on the grievor's explanation as to why he took the money and how this was not an illegal transaction in line with the SCC's laws, policies and procedures including the grievor's contract of service. In my view, the grievor presented no plausible explanation how one receipt would have sufficed when he had admitted that he had collected $5.00 for space fee from four different vendors. In fact, Exhibit 2 and 3 are very clear that each vendor was expecting a receipt for $5.00 they had paid to Mr Tikodudua. In that regard, it is highly likely that the employer's assertion is with merits that the grievor only proceeded to give $20.00 to Mr Ceinaturaga on 12th November as per Mr Ceinaturaga evidence given that he was not at work on the 11th November and thus raised a receipt then. And this was done after the complaint was officially made by the vendors at the SCC office at almost the close of business on the 12th November 2010.
[30] My conclusion is entirely based on the grievor's account of the timeline in terms of his routine work on the 12th November. The grievor testified that he had given the $20.00 to someone in the Council, whose name could not remember. There was suggestion first that he gave money on the same day (11th November). After much contradiction in his evidence in chief, he admitted in cross-examination that he did not tell anyone about the collection of $20.00 until the next day and this is after returning from his routine enforcement work that had kept him busy up-til 3.30pm on 12th November. Evidence points to Mr Ceinaturaga raising at least two receipts in the noon of 12th November 2010, somewhere around 4.00pm. While the one with the date, 10-11-2010 was contested, the receipt that appeared to have the date, 11-11-2010 was accepted by the grievor as he testified that had instructed Mr Ceinaturaga to make a receipt for "ILLEGAL SELLING OF MANGO" for the entire amount of $20.00.
[31] The grievor also testified that around 3.30pm when Mr Raj was bringing the Fijian lady to the SCC office, he spoke to her. He had informed her that he had the receipt with him and that he would give it to her after he had returned to the office from buying bun for his afternoon tea. Clearly he was not perturbed that the lady had waited all evening the previous day and again the next day for her receipt as promised by him. Now she had to, out of necessity, come to the SCC office to obtain her receipt in order to trade legally on the streets of Suva. It was for this reason the grievor had testified that he had agreed to make payment for the four vendors when he had obtained $20.00 given to him voluntarily. Therefore, if he had explained his difficulties to the vendor regarding the delay in giving the receipt and then sought her consent to accept it straightaway since Mr Raj appeared to have allowed him and the vendor to exchange a conversation, albeit in the Fijian language, at this point in time, I would have agreed as Mr. Rae had put to this Tribunal, that the grievor would not have lost his job for mere $20.00.
[32] But giving prominence to afternoon tea as opposed to someone's' livelihood under threat, where this vendor was now leaving her produce in someone else's custody in order to obtain a receipt for payment of space fee, and for the grievor to still ask her to wait, in my opinion cannot be justified. More so, when he had testified that he had accepted the money to help these vendors in distress the previous day. He said they came from Nadi hence they were not able to locate the SCC office. He decided to help these vendors and thus agreed to make the payment and provide a receipt the same evening or the next day. In my opinion, it was of no probative value how many receipts for $20.00 was raised, or the way in which it was raised. Obviously, the employer's systems and processes have major flaws to easily conduct dishonest practices. This however, is not the terms of reference for this grievance. What is relevant here is that a receipt was required by each vendor when in actual fact no receipt for $5.00 was raised at all. I suspect, in the rush to raise a receipt when the complaint (Fijian lady/vendor) came in, for which all this grievance is about, Mr. Tikodudua made this fundamental error.
[33] This points to the obvious that he did not bring the $20.00 to the Council with a genuine attempt to raise receipts or pay the revenue as he had promised the vendors. If he had, then he would have given the clerk the money and instructed to raise four different receipts for $5.00 at his earliest possible. If he had indeed paid the money on Thursday as he had earlier told the Tribunal (the evidence was clear that he did not), then he could have instructed someone in the Council to raise the receipts accordingly to be either given to the ladies when they came to the SCC or someone to deliver the same to the market master. Or merely taken some steps to inform the market master by telephone and I do not believe he had no time the next day to do this. I do not believe even if he had already made a receipt for $20.00 dated 11th November (excluding the receipt dated to 10th November) before the complaints arose the vendor whom he had met in the parking lot would have been pleased with one receipt for $20.00. Exhibits 2 and 3 are my basis to say this with some conviction.
[34] Then, there are other inconstancies in the grievor's account of why he could not provide the receipts as promised.
[35] According to the grievor's evidence he had promised to return with a receipt same day or by the evening but he was unable to do so. The evidence of the employer in terms of the two complaints letters alluded to the fact that the grievor had promised the vendors that he would provide them their receipts by 8pm that same day (in the evening of 11th November). This seems to me to be a rather an unusual arrangement for an enforcement officer to go beyond and above the call of duty and ensure that the illegal traders get receipts in the evening. Clearly, the grievor had testified that the cashier was closed on Thursday when he had arrived to the office. The grievor further attempted to explain that he had no transport when he returned to his office and he was getting late for his personal work, hence he could not keep his promise to return in the evening with the receipts. The question that begs an answer is why then make a promise to return with a receipt that same evening when he should have anticipated that by the time he would return to the office, the cashier would be closed and staff would be getting ready to go home. Thus receipting would be a problem. It was even more curious and strange to hear from the grievor that he was aware that the lady vendors had come from Nadi, and when he had asked them about their whereabouts the next day, they had informed him that "they would not be coming back there tomorrow." The grievor testified that this is when he told the ladies that if they came back next week, they could apply for their permit or pay for their space, and in doing so, they could come and see him for the receipt.
[36] I have difficulty to put in perspective which version is correct. The vendors clearly were expecting their receipts that same evening or next day, or to be more specific, no later than by the morning of next day. This is based on the fact they went to the market master next morning enquiring about the receipt. On the other end, the grievor ought to have known that the vendors were likely to go back to Nadi according to his own testimony as their whereabouts was precarious; that is, whether they will stay the night of Thursday or return next day, this was not clearly known to him. In fact, based on his own evidence, the grievor must have assessed that it would not be easy to locate these day to day traders, and yet he took money for payment of Council fees and additionally promised to give receipts that same evening or next day. Then he changed his stance and testified that he had told the ladies that if they came back next week, they could apply for their permit or pay for their space, and in doing so, they could come and see him for the receipt. To any reasonable Tribunal, this is nothing short of a bundle of confusing and conflicting statements, all from the same person. As I have said, there are far too many variances in the grievor's story for it to be treated as credible and believable evidence.
[37] In that regard, after thoroughly weighing the evidence, I have to say that the grievor's explanation is with no conceivable merits
to justify that he was genuine in his collection of revenue although it meant going outside his usual JD. Here, the grievor testified
that he resorted to a more humanitarian approach to help the four women and accepted $20.00 almost towards the end of his official
duties. He then led the vendors to believe (and he also testified) that the money was exchanged in lieu of furnishing the receipts
on the same day or in the evening. Since he was committed in the evening of 11th November and the same reason was given for almost
three quarters of the day for 12th November, he was unable to give the receipts to the vendors until they came seeking answers from
the Council. Even when he met one of the four vendors in the SCC parking lot at around 3.30pm, he made no sincere and prompt effort
to furnish the receipt.
[38] Despite this, he argued that he was technically well within the timeframe set down by SCC to provide receipts to vendors, within
procedures built entirely on the CEO's suspension letter. I beg to differ. I find the grievor has not satisfied his grievance claim
to a reasonable standard why he did not raise the receipts to all of the four vendors individually by showing some sense of urgency
as evidently without proper space permit, these vendors would have been unable to operate legally. And the fact they returned next
day to enquire about the receipts is clear indication of them wanting to continue trading in Suva boundary and the grievor's story
is thus proven a mere distortion of facts. As a matter of fact, I can foresee various ways the grievor could have assisted the illegal
vendors if he truly intended to help these simple-minded people trying to make a living selling mangoes. He could have shown them
same empathy by asking one of the four vendors to be accompanied to the SCC head office which was not far from the location they
were at the material time. The other three vendors could have minded her produce. After all, this was a question of four vendors
(in total) being in breach of SCC's by-laws. Or alternatively he could have issued a paper fine and instructed the ladies to obtain
a proper space permit immediately the next day including paying for the space they had used on Thursday. This is considering his
initial reaction to illegal-street vendors he testified would be immediate removal from the site. And, this is in spite of the fact
that he was put on notice that the women had come from Nadi and they were to leave the next day as was his own evidence. All these
conflicting evidence has cast serious doubt as to the grievor's genuine intention to collect revenue from the roadside vendors in
order to help them. Clearly his lack of urgency to help the complaining vendor who came all the way to the SCC office to finally
collect her receipt cannot be overlooked
[39] Her Ladyship, Wati J in her judgment of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011 had stated that the employer was entitled to dismiss summarily (for gross misconduct) under a contract of service or additionally pursuant to s33 of the ERP: she further observed that:-
"...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)
[40] I then find that the employer was generally, in compliance with the ERP 2007 provisions that unequivocally entitle them to invoke s33 as a statutory right of the employer to summarily dismiss an employee. SCC, in fact utilized a termination clause, for summary dismissal as stipulated in the Collective Agreement. This is almost identical to s33 of the ERP.
[41] There is no doubt in my mind in this case that the employer had a reasonable basis to find the grievor guilty of gross or serious misconduct including being culpable for willful disobedience to lawful orders given by the Employer, when the procedure for payment of any revenue collected by the grievor was violated.
[42] As to the final reason for termination being, "...for habitual or substantial neglect of his/her duties....", again to prove this on past incidents to show a pattern of re-offending, in my opinion is relevant here only, to the extent of the employer's justification that he was aware what was the rules and procedure in terms of revenue collection. He admitted he was not authorized to collect revenue under his JD. If he had collected by virtue of some unwritten rules and procedure, again, he was aware that it was not be treated as his own collection and had to be remitted with the employer as soon as possible. Laxity and lack of urgency here has cost him his job, even if the question is only for $20.00. The fact that he was alleged in the past (whether founded or not and again I was not given the entire facts except that he was pulled up for a similar offence), and that he had faced termination and subsequent reinstatement for whatever reason, this itself had put him on notice as to what was the acceptable code of conduct in such matters. Even if his final warning had expired in my assessment this does not absolve him entirely from being aware of his authorized duties and responsibilities as framed in the JD and thus applying the standard of acceptable code of conduct in performing those duties. Good faith employment relationship always demands that both sides come with clean hands. The record keeping of the employer is not to be perceived in the strict sense of records kept in criminal matters. Here, the employer is mandated under the law to maintain personnel file which allows them to reasonably assess what sort of conduct no longer justifies the grievance procedure of warnings as a more lenient penalty as opposed to summary dismissal. Clearly there have been instances where Courts have found one instance is enough to summarily dismiss an employee (see: the case of Sinclair v Neighbour [1967] 2 WLR 1).
[43] In that regard, all the grounds for the grievor's termination, especially the act of dishonesty in the execution of public duty allows the employer to have valid reasons or lawful cause to justify summary dismissal of this 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 Tikoduadua was lawful.
[44] The Employment Relations Court in Isoa Latianara case has also provided that:-
"...if there is serious misconduct, then it is the prerogative of the employer to terminate the employment immediately. If all these procedures of hearing and explanations are accorded to the employee, then the purpose of summary dismissal is lost..." (at page 8).
[45] Accordingly, the Court 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. Evidently once "lawful cause" is established by the employer there is prerogative of the employer to waive that right and proceed to immediate termination. I understand same rule shall apply for the second and third grounds for termination here.
[46] Madam Justice Wati had relied on the case of Central Manufacturing Compnay Limited v Yashni Kant [Unreported Fiji Supreme Court Case Number CBV 0010 of 2002] to further clarify the issue of unfair dismissal.
[47] In this case the Court had ruled that in carrying out the dismissal, the employer must treat the employee fairly and with appropriate
respect and dignity. This was followed by Ladyship Wati in Isoa's case where she had additionally pronounced that:-
"...it is not the aspect of right to be heard that leads to unfair dismissal. It is the manner of treating the employee in carrying out the dismissal that must be considered. The employer's actions must be assessed to ascertain whether the employee was treated with fairness, respect and dignity in carrying out the dismissal" (underlining is my emphasis).
[48] In another case of Shell Fiji Limited And Fereti Filipe v Benjamin Johnson Civil Appeal No. CBV No. 008 of 2010 (19 October 2011),, the Full Supreme Court also echoed this by adding that:-
"...For a claim of this category to survive, there has to be a cause of action, evidence and causation shown. Simply, the employee has to plead that the manner of dismissal was unfair, evidence must be tendered on what constituted unfair treatment, together with the evidence that the said treatment caused the employee distress or humiliation or physical and psychological harm. That is the legal parameter on which such a claim operates and survives..."
[49] In this grievance matter, the issue of unfair dismissal largely centers on the grievor's denial to his right to due process such as not being interviewed when the investigation-proper was conducted, followed by his right to appear before the Disciplinary Committee to hear and challenge evidence as well to mitigate penalty before the CEO could make a decision to terminate him. However, 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 terms of not according the right to hearing no longer remains the test for unfair dismissal. 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 the vendors on the pretext of paying space fees to allow them to trade legally, yet he failed to deposit the money into the SCC revenue collection and raising receipts in a timely manner. In the interim, complaints were lodged. He was neither authorized nor given a job description to do this. If the complaints had not come to the employer, there is high possibility as the witness, Mr Raj had stated that the grievor would have pocketed the money. This is further substantiated by his failure to disclose his collection to anyone at SCC until the complaint was received.
[50] As a side comment, while often it is the grievance procedure for handling allegations of such nature that result in punitive action of summary dismissal by an employer that come to the Tribunal in form of unfair dismissal claims, the Tribunal's first point of testing "fairness" is establishing whether the employer had lawful cause. This is regarded as the substantive fairness of proving that there was good and just reasons to terminate someone.
[51] For procedural fairness, which is really the basis of unfair claim of the grievor, here I noted that the employer did not completely deny him due process. He was clearly explained the allegations in presence of his Union Representative and later asked to respond in writing. His written response according to the chairman of the investigating team, Mr Lal was identical to what he had said during his face to face interview. Hence he maintained that there was no further need to interview him again or call him to the Disciplinary Committee. Mr Lal furnished his report to the CEO of SCC who within his discretionary powers, invoked summary dismissal provision in the contract of service. I understand the Collective Agreement under the "SUSPENSION" clause entitles the CEO to do this where it stated:- "...where investigation substantiate the allegations, the employee may, at the sole discretion of the employer be dismissed or subjected to such lesser penalty as the employer decide...". Mr Lal had testified the whole process to coming to the decision of summary dismissal of the grievor had taken almost a month. In the meantime, the grievor was treated fairly subject to his terms and conditions of the Collective Agreement, in that all his wages was up to date till his last day in the Council. I tend to agree. Hence, there is really no issue of procedural unfairness here.
Decision and Orders
[52 ] In accordance with the aforesaid, the Tribunal declares and orders that:-
DATED at Suva this 29th day of May 2013.
LEGAL TRIBUNAL
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJET/2013/16.html