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Naituku v Land Transport Authority [2013] FJET 26; ERT 91.2011 (10 April 2013)

IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA ERT No. 91 of 2011

BETWEEN:

NAIBUKA NAITUKU
GRIEVOR

AND:

LAND TRANSPORT AUTHORITY
EMPLOYER

Appearances:

Mr. N. Tofinga for the Grievor
Ms. F. Kinivuwai for the Employer

Date of Hearing: 21st February 2012
Date of Judgment: 10 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 9th February 2011. Mediation was attempted on 30th March 2011 but was not successful. The mediator referred the grievance to the Employment Relations Tribunal (or “the ERT”) on 31st March 2011in accordance with s194 (5) of the Employment Relations Promulgation (or “the ERP”) outlining the nature of unsettled employment grievance with the following terms of reference:-

“The decision by management to terminate the services of the griever which he claimed was unjustified and unfair”

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 28th June 2011. After some delay, the Employer, Land Transport Authority (or “the LTA”) filed their Preliminary Submissions on 18th August 2011 and the grievor, Mr Naibuka Naituku filed his Preliminary Submissions on 31st August 2011.

2.2 The hearing was set down for 21st February 2012. On that day, both parties made two oral applications. First application was by way of consent, that both the parties wished to tender the Employer’s documents attached to the Preliminary Submissions dated 18th August 2011 on “as is where is” basis, thereby this was requested of the Tribunal to be treated as evidence and marked as Exhibits. The application was granted and the following Employer’s documents were accepted as part of the hearing-proper evidence:-

• “E1” – Memorandum dated 29th June 2010 (15pages) marked as Exhibit “1”;
• “E2” – Memorandum dated 9th July 2010 marked as Exhibit “2”;
• “E3” – Memorandum dated 2nd August 2010 marked as Exhibit “3”;
• “E4” – Investigation on the Suspension of LTA Officer Mr. Naibuka Naituku dated 22nd September 2010 (28 pages) marked as Exhibit “4”;
• “E5” – Memorandum dated 27th October 2010 (3 pages) marked as Exhibit “5”;
• “E6” – Letter dated 9th November 2010 (3 pages) marked as Exhibit “6”;
• “E7” – Minutes dated 8th December 2010 (2 pages) marked as Exhibit “7”;
• “E8” – Letter of Termination dated 10th January 2011 (3 pages) marked as Exhibit “8”;
• Extract from “Despatch Book” marked as Exhibit “9”
• Letter dated 13th July 2011 (3 pages) marked as Exhibit “10”.
  

2.3 The second oral application (which was declined by the Tribunal) pertained to consolidation of the present grievance matter with another grievance matter: GRT Grievance No. 57 of 2011. The basis of this application as explained by Mr Tofinga was that there were common issues in both matters such as that the grievance arose due to a disciplinary process invoked by the then, LTA Board Chairman after public complaints were received against the grievors in respect to their conduct in performance of their duties. Mr Tofinga argued that this common element warranted that both matters be dealt simultaneously. He also told the ERT that in both matters, the contract of service binding both parties was a Collective Agreement between the Employer (LTA) and Fiji Public Service Association, Public Employees Union and Viti Taukei Union (the Unions). However, it was clear that the two grievances had taken place at different periods. Further, the facts and details of the claim being entirely isolated or unrelated made it easier for the Tribunal to deny the application to consolidate the two matters.

2.4 Suffice to say, Mr Tofinga also alluded the Tribunal to a Memorandum of Agreement (or “the MOA”) dated 18th February 2004 which was not pleaded in the employer nor the grievor’s preliminary submissions in this instance. In fact, this document was disputed by the Employer as it appears that the counsel for LTA was not fully cognizant of its purpose or the grievor’s basis to rely on the same. Other than putting the Tribunal on notice that the complaints procedure had slightly changed as the position of Manager Personnel Relations was no longer in existence with LTA who was in charge of dealing with the complaints received from the public (a fact not disputed by Mr Tofinga), it seems that the counsel for LTA was not totally opposed to the validity or the fact that this document was part of the Employer’s contract of service of the grievor.

2.5 It is also proper to mention that Mr Tofinga spoke of another MOA while he was elaborating his second application to the Tribunal. He had attempted to inform the Tribunal that if the two matters were to be consolidated despite the grievances had taken place at different times, the MOA attached to the grievor’s documents in his preliminary submissions contained in the GRT Grievance No. 57 of 2011 is of essence to this case also. I had a look at that MOA and I found this to be identical to the MOA Mr Tofinga had earlier alluded to, but which was objected by the LTA counsel. Given that the employer objected to this particular document in this matter but had mutually agreed or consented to have the above documents tendered and marked as Exhibits 1- 10, and the Tribunal had refused to consolidate both the matters on the basis that the termination of contract of service had occurred at different periods, to avoid prejudice to either party, I had then allowed Mr Tofinga to properly adduce this document (MOA) through witnesses, if any. In that regard, for ease of reference given that the grievor used and referred to this document when he gave his sworn testimony, it was treated and marked as Exhibit “11”.

2.6 I also note that the employer did not call any witnesses and relied entirely on the documents tendered by consent in evidence as Exhibits 1-10. The grievor, however took stand and gave sworn evidence.

3.0 Facts

3.1 Since the Grievor had agreed and relied on the Employer’s Preliminary Submissions from paragraphs 2 to 15, I will merely summarize the undisputed facts.

3.2 The Grievor was employed by the employer as a Vehicle Examiner and was appointed in September 2009. The contract of service binding both parties was a Collective Agreement. This was supposed to be supplemented by an MOA dated 9th March 2011. The Employer did not deny its existence or it’s validly except that the personnel position in charge of receiving complaints was no longer in existence. This fact was also known to the grievor’s representative.

3.3 It was an agreed fact that the Executive Chairman had received a complaint against the grievor that a vehicle registration number ET651 was passed on 20th May 2010 by the grievor in Valelevu. To support this, a copy of the statement by the Executive Chairman, Mr. Greg Lawlor was tendered in evidence by consent as “Exhibit 1” at page 7. The grievor also claimed he had passed this vehicle for fitness on 20th May 2010 as the LTA officer-in-charge then.

3.4 What was in contention by the employer was that the vehicle was passed by the grievor without it being physically inspected by the grievor at the Employer’s Valelevu Head-Office. According to the employer, the vehicle with the registration number ET651 was of white colour (and not blue as annotated by the grievor in the vehicle test result sheet number 494374 dated 20th May 2010), was a Toyota Sedan and not Toyota Echo (as stated in the LTA Vehicle Details – Exhibit 1, at page 9) and which vehicle was supposed to be written off. However, it seems the said vehicle was still issued a certificate of fitness from the Valelevu LTA office when the employer argued this could not be possible when the vehicle was placed in Lautoka.

3.5 The Employer maintained that the complaint received by the Executive Chairman indicated that the vehicle had never left Lautoka which then had created a basis for the employer to doubt and investigate the mandatory physical inspection process that was supposed to have taken place in Valelevu by the grievor before issuance of a certificate of fitness. This was not a practical or genuine scenario if the vehicle was located in Lautoka.

3.6 The grievor, on the other hand, stated the said vehicle was a property of one, Mr Arunesh Prasad (confirmed by the statement of Arunesh Prasad provided in Exhibit 1, at page 8), who had the vehicle first registered as LR2265 before it was revoked on 14th May 2010 on revoke slip number 15468. After surrendering the number plate to the PSV section, the grievor had stated the vehicle had reverted to its private status with the registration number ET651. I must state that these facts were not collaborated to the Tribunal by way of witness testimony or compelling the employer to show their records in terms of the revoke slip number 15468 if it existed. The grievor continued to maintain that the said vehicle was passed by him on 20th May 2010 when the owner’s worker/mechanic based in Nabua by the name, Atish Prasad had taken the said vehicle to him for inspection and issuance of fitness certificate (confirmed by the statement of the grievor provided in Exhibit 4, at page 18). It seems that to support this, Mr Atish Prasad had stated in his statement (at Exhibit 1, at page 6 and Exhibit 4, at page 14) that he had taken a vehicle of the make, Toyota Echo in white colour to LTA, Valelevu upon his boss’s instructions on 20th May 2010, where at LTA, a Fijian man whose name he could not recall attended to him when the vehicle was passed for road worthiness.

3.7 But for the employer, subsequent to a public complaint made to the Executive Chairman over the telephone that a written-off vehicle was issued with a fitness certificate in Valelevu when the vehicle had never left Lautoka, Mr Lawlor acted and initiated a preliminary enquiry into the truth of the allegations. LTA’s employee, by the name, Mr. Emosi Caniogo of the Standards and Compliance Department was tasked to investigate the matter who then produced an extensive report in the form of an Memorandum dated 29th June 2010 of at least 15pages (Exhibit 1). At this point in time, it appears that the grievor was still carrying on his duties as usual.

3.8 In brief, the preliminary findings of 29th June 2010 investigation report highlighted the following:

• The said vehicle was passed and issued with a registration certificate where it was noted the Grievor was the LTA officer who had passed this vehicle. The vehicle test result sheet number 494374 dated 20th May 2010 countersigned by Shalendra Deo was attached to confirm the officer who had attended to the physical inspection.
  
• It was noted that no time for inspection was entered in the vehicle test result sheet.
  
• Mr. Caniogo’s report had further noted that according to the main gate security log book, there was no manual record of any such vehicle either entering or exiting out of the LTA, Valelevu compound although it was supposed to be recorded as a practice by the Security.
  
• The employer’s Geo Vision software camera record with the IT section also confirmed that no picture of the vehicle was captured on that particular day. It seems that any vehicle entering or exiting is usually caught by this technology set up by the employer.
  

3.9 Mr. Caniogo’s report had recommended that further investigation be carried out by an independent team to gather more evidence to substantiate the preliminary findings where he also stated that statements should be recorded of all those involved to furnish the claim. The Report had further noted that the grievor had requested for an independent enquiry.

3.10 The Grievor was thus notified via Memorandum dated 9th July 2010 to utilize his annual leave (Exhibit 2) pending investigation against him. He was advised that he would be informed as to the status of the allegations vis a viz the investigation outcome after the expiry of the fifteen days annual leave accrued to him. Hereafter, the Employer notified the Grievor through a Memorandum dated 2nd August 2010 that he was suspended on half pay effective from 2nd August 2010 pending further investigation for alleged breach of Code of Practice and Code of Conduct (Exhibit 3).

3.11 While it was not clear whether the abovementioned ‘further investigation’ to be conducted by the Employer, LTA was complemented or substituted by a special investigation team which was conducted by the Ministry of Works, Transport & Public Utilities (as per Exhibit 4), however, one thing that is unambiguous fact is that it was initiated at the request of the grievor when he had written to the Minster of Works, Transport & Public Utilities through a letter of complaint dated 19th July 2010. In fact the Ministry’s report had contained this letter as their terms of reference for initiating an investigation. It indicates that the grievor was still on LTA full payroll and conducting his duties when he penned out this letter as he was only suspended after 2nd August 2010.

3.12 The 30 page report dated 20th September 2010, titled: “INVESTIGATION ON THE SUSPENSION OF LTA OFFICER MR NAIBUKU NAITUKU” had concluded that the grievor had failed to or willfully neglected to perform a duty entrusted in him by LTA. It recommended that the grievor should be terminated by LTA on the basis of the following findings:-

“The Investigation Team revealed that Mr. Naibuka in his capacity as Vehicle Examining Officer failed to:

1. Record the time he conducted the inspection on the Vehicle Inspection Sheet.
   
2. Colour of car he wrote on the inspection sheet different from actual colour stated by the mechanic and the colour of the same car recorded in the vehicle detail sheet with the Land Transport Authority record.
   

100. No records were entered in the PSV Section register stated that the rental number plate was dispatched to them and also when the private number plate was issued.
     

4. The Geo Vision Software camera located in the IT section office is a device introduced by the authority to screen and record all vehicles entering and exiting the LTA complex daily. The Investigation Team with assistance from a LTA IT Staff could not spot the vehicle on the dates stated by Mr. Naibuka that it entered the LTA complex to be revoked and the day it came to be passed for road worthiness and was issued with a private number plate.
   
5. The Security guard located at the LTA main entrance acts a security guard to the LTA complex and part of his tasks is to record in the main gate security log book all details i.e. number of vehicle, date of entry, time in and time out of all vehicles entering and exiting the complex. The security log book was inspected but vehicle number could be found as per record.”
   

3.13 Following the outcome of the investigation, the Employer via another Memorandum dated 27th October 2010 issued the Grievor with disciplinary charges pursuant to Clause 8.2.1 of the Collective Agreement, which was received by the Grievor on the same day (Exhibit 5). He was accorded a right to defend the charges within 14 days of the receipt of the charges.

3.14 The Griever replied to the charges via a correspondence dated 9th November 2010 (Exhibit 6). He denied all the allegations made against him and seemed to have a clear understanding that the employer had provided him an opportunity to respond to the charges in order to provide his explanation and counter-evidence to prove his innocence.

3.15 Thereafter, when the Employer’s Staff Board met on 3rd December 2010, it was resolved that the Grievor be summarily dismissed as per the recommendation made by the Ministry. (Exhibit 7).

3.16 By a Memorandum dated 10th January 2011(Exhibit 8), the Grievor was notified of his termination by the LTA CEO, Mr Naisa Tuinaceva where the employer had stated that:-

“As per the investigation report submission dated 29/09/2010 from the Special Investigation & Discipline Unit (Ministry of Works Transport and Public Utilities), a submission on the matter has resolved pursuant to Section 33(1) (a) of the Employer Relations Promulgation 2007 your employment with Land Transport Authority is hereby terminated with immediate effect...

Your termination of contract (summary dismissal) is based on the following reasons:-

1. That you breached clause 8.1.1 of the Collective Agreement...
2. That you breached clause 8.1.2 of the Collective Agreement...
3. That you breached clause 8.1.4.10 of the Collective Agreement...
   

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

4.0 Issues

4.1 Facts clearly allude to the employer acting on a public complaint against the Grievor. Thus initiating an investigation into possible breach of the employer’s Code of Conduct and rules and regulations specified in the Land Transport Authority Act. The employer thereafter invoking the disciplinary process, finally concluded and found the Grievor’s conduct to be a serious misconduct, which resulted in the summary dismissal of the Grievor pursuant to a statutory provision under s33(1)(a) of the ERP 2007.

4.2 According to the Employer, the issues pertaining to this grievance are twofold: was it a lawful summary dismissal in terms of the merits of the grievance, meaning whether or not the conduct of the grievor was sufficient to be deemed a serious misconduct resulting in the Employer summarily dismissing the Grievor; and whether or not summary dismissal was fair in terms of the procedures followed in dismissing the Grievor.

4.3 The Grievor claims that his grievance relates to unfair, wrongful and unjustified 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 implied contract of service. The Grievor has stated that the employer did not act in good faith. From the evidence, which I shall come to shortly, it appears that grievor’s main contention was relation to being denied procedural fairness where he is alleging that the employer did not accord him a right to hearing, mitigation and appeal process. If the grievance is found in his favour, the grievor has requested the Tribunal to make orders for immediate reinstatement without loss of salary and benefits including seeking orders for compensation for loss of dignity, distress of mind and humiliation.

5.0 Evidence of the Grievor

In Examination-In-Chief, Mr Naibuka told the Tribunal that:-

• He had started working with Land Transport Authority since 2nd February, 2004 under the Collective Agreement.
  
• He said he was terminated on 10th January 2011.
  
• Since his termination he has not been able to find another employment. He was married with three children. He has been feeding his family from the harvest he gets from his farm. His farming average nett income was between $70 to $80 a week.
  
• He was shown the copy of the Memorandum of Agreement dated 18th Feb, 2004 where he was asked to read out clause 2 where it was stated “that all complains from the public must be in writing and signed by the complainant before they are accepted as formal complaint.”
  
• He was asked to also read out clause 5 where it stated that “that in cases where letters of complaints are accepted as formal complaints, a copy of the letter must be given to the staff member against whom the complaint is raised within 72 hours of acceptance. “
  
• He confirmed the Tribunal that he was not given any complaints letter from the customer nor did he receive any complaints letter before he was terminated.
  
• He told the Tribunal that when he had received the letter of termination on 10th January, 2011, the new school year was about to start. He said LTA did not give him any time to explain himself or the reason before terminating him. For this, he felt distressed thinking how he would look after his family.
  

In Cross-Examination, Mr Naibuka told the Tribunal that:-

• He confirmed giving a statement to the Ministry’s Investigation Unit.
  
• He agreed that he was aware of the allegations or complaints against him when he had given that statement.
  
• When probed about his own letter of complaint dated 19th July 2010 to the Minister of Transport resulting in the Ministry’s Investigation that was conducted, he confirmed that he wrote to the Ministry.
  
• He was then asked by the LTA counsel to read out the letter of 19th July 2010 at lines 1, 2 and 3 where it stated the following:- “...Once it happened to me in 2006 through allegations and through inference of your Office after noting my verbal submissions and as for your directive I was reappoint back to LTA”.
  
• When asked if this meant that the current grievance pertaining to his dismissal was his second termination, he stated “yes”.
  
• He then stated that he was previously terminated for similar allegations in 2006, which was that he did not physically inspect vehicles before issuing the certificate. He then told the Tribunal that he was reinstated to his position on 2nd October 2009 through the Ministry’s intervention then. He further confirmed that like the present grievance he was also charged in 2006 for a similar offence. The current offence also pertained to not physically inspecting a vehicle registration No. ET651, where the result again was that the grievor was terminated.
  
• The grievor finally confirmed that the employer, LTA had given him time to respond to the charges and that he did provide a reply to the employer within the 14 day period stipulated to him after Ministry had concluded their independent investigation.
  

Mr Tofinga objected to the part of the grievor’s testimony as to the relevance of the 2006 incident relating to the grievor’s termination. He had pointed out to the Tribunal that in terms of the termination in 2006 and the ensuing reinstatement of the grievor in 2009 by the Ministry had no bearing to the current case as they were unrelated facts to the current grievance. Mr Toginga stated that it was LTA (and not the Ministry) who had taken a decision to summarily dismiss the grevior in this instance, therefore what had transpired at the hands and authority of the Ministry in the past cannot be used to test this case. The counsel for LTA attempted to explain to the Tribunal that she was merely trying to establish a pattern of re-offending for similar charges/offences. This was in fact derived from the grievor’s own document attached to Exhibit 4 admitted by consent of the parties. Ms Kinivuwai argued that this letter gave her a basis to question the grievor as he had claimed initially that he was not aware of the allegations made against him in terms of the MOA complaints procedure although he had written to the Ministry for an independent intervention after the employer, LTA had received a public complaint and embarked on an investigation. Subsequently the grievor had given a written statement to the Ministry as contained in Exhibit 4 which showed that he was fully aware of the nature and details of the complaint against him.

I have to agree with Ms Kinivuwai that the grievor had opened himself to be questioned on this issue although it was irrelevant whether or not the Ministry or LTA in 2009 had investigated his termination and directed for reinstatement. At the material time, the grevior had no problem using Ministry’s intervention to clear his name as he did in this instance. I also find that while Mr Tofinga is right in stating to the Tribunal that the grievor being reinstated in 2009 as he had alleged that LTA had made an error of judgment in terminating the grievor in 2006, hence it was wrongful termination, this fact is of no consequence in this instance as the grievor’s letter to Ministry only referenced to a previous incident without giving the details or facts to draw any reasonable conclusion what had happened then. For that reason, I will keep this part of the testimony simply to draw an analogy with the current facts that the grievor had voluntarily sought independent inquiry of the Ministry and that he had alluded to a previous incident without divulging details surrounding his termination and subsequent reinstatement in 2009. But I also have noted that the grievor had agreed during his testimony that he was terminated in the past for a similar offence (relating to issuing of fitness certificate without physically inspecting vehicles). Hence allowing LTA to establish relevance to the extent of showing a pattern of re-offending.

Yet the employer was cautioned that the onus to prove that the past alleged misconduct of same nature (whether proved or not) showed a pattern of the employee’s behaviour towards his core duties was not the only or one of the determinant factors that would establish that the current allegations are lawful and fair in substance and procedure to justify summary dismissal under a statutory provision (s33 of the ERP) on the standard of balance of probabilities. The employer had surmountable task to prove that it contributed directly towards his alleged current serious misconduct by breaching the Authority’s mandatory laws, rules and policies.

In Re-examination, the grievor stated that:

• He was surprised when he had received his termination letter. He said that after he had sent out his response to the employer, the Management did not call him for an independent enquiry to hear the charges. He told the Tribunal that they had promised to call him for an interview in front of the Staff Committee to hear his grievance and explanation. However, he had waited for about 5 to 6 months, when he had decided to visit the GM and CEO of LTA in order to ask when they had intended to call him, after which he said, he then, suddenly received his termination letter. He said that he was waiting for an interview but instead he had received his termination notice from the employer.
  
• In counter-response, LTA’s counsel sought Tribunal’s indulgence to cross-examine the witness on this issue by stating that the grevior was given an opportunity to appear before the Manager Human Resources as reflected in Exhibit 7, the Minutes of staff board meeting. However he had refused and opted to write to the employer to explain his position. Mr Tofinga objected to the cross-examination of the witness as he stated that the witness had already confirmed that he did not appear before any Committee where the charges were ought to be put to him properly and thus determined as is the practice. This was also stipulated under the Collective Agreement, being the contract of service.
  

6.0 Submissions By both Parties

6.1 After a careful scrutiny of the facts and evidence, the employer’s main justification for invoking summary dismissal against the grievor pursuant to s33 of the ERP 2007 was because the vehicle passed for fitness by the grievor in the employer’s submission, was in fact written off. However, it seems the said vehicle was still issued a certificate of fitness from the Valelevu LTA office when it was also submitted by the employer that this particular vehicle was placed in Lautoka. It was argued by the Employer that the said vehicle had never left Lautoka which then had put in question the mandatory physical inspection process before issuance of a certificate of fitness by a LTA officer. To prove that the grievor was in a habit such conduct, the employer during the grievor’s cross-examination had attempted to demonstrate a pattern of similar offending in the past where it was confirmed by the grievor himself that he was terminated in 2006 for issuing fitness certificate without physically inspecting vehicles.

6.2 The employer had cited and relied on the case of Fiji Public Service Association vs. Land Transport Authority [2007] FJAT 26; Award 27 of 2007: Griever Mr. Risiate Tadulala. In this case the Grievor was found guilty of two charges which amounted to misconduct sufficiently serious to justify the penalty of summary dismissal. The Tribunal had viewed that because the Griever did not physically examine the reassembling process, this amounted to misconduct. The Tribunal in this case had concluded “...that there was sufficient evidence before the Employer for it to conclude that the griever had not physically examined the reassembling process ... The tribunal was satisfied that the misconduct amounted to acting dishonestly and without integrity...”.

6.3 The Employer went onto to submit that there was a remarked similarity to the current grievance with the Risiate Tadulala case: here too, the Employer viewed non-physical inspection of vehicles as a serious misconduct. The employer was in actual fact highly concerned with this act of the grievor (or what they deemed as ‘serious misconduct’) in view to issues that contributed towards road safety. According to the employer, the issuance of Certificate of Fitness and or Road Worthiness without a physical inspection of vehicles meant that the grievor was allowing defective vehicles to be put on the public roads. Hence, creating a grave danger to the road-users. This was then regarded by the employer to be a serious issue amounting to breach of LTA laws and Code of Conduct pursuant to the provisions of the Collective Agreement that resulted in the summary dismissal of the grievor under s33(1)(a) of the ERP 2007.

6.4 Mr Tofinga argued in his oral and written submissions (in brief) that:-

• There was lack of due diligence on the part of the employer to establish a proper terms of reference for investigation such as whether or not the vehicle registration No. ET 651 was involved in an accident and thus written off; was it issued with “fitness” by LTA; and that it had never left Latouka. He said there was no evidence to prove this aspect of the allegation being the basis of the public complaint.
  
• There were irregularities with the charges laid against the grievor by the employer and the disclosures pertaining to any investigation (reports) were also not given to the grievor.
  
• There was interference by the Ministry of Works, Transport & Public Utilities who had no power to interfere to investigate or decide on the termination of the grievor. He submitted that if they had investigated and found the matter to be true “they were free to refer the matter to FICAC and charge him under the FICAC decree or refer him to the police or charge him under the Penal Code...”
  
• The Chairman of LTA also was not mandated to look into a public complaint and/or be involved in initiating an investigation or simply part-taking into the decision-making process that may led up to the termination the grievor.
  
• There was denial of audience of the grievor by the Staff Board before punitive decision to impose a penalty of summary dismissal was taken against the grievor; and
  
• There were inconsistencies in the way the disciplinary process was exercised by the employer under the Collective Agreement which was the contract of service of the Grievor. Mr Tofinga argued that under Chapter 8, the disciplinary procedures outlined in the clause 8.2.1 require service of the charges and the response from the grievor thereafter within 14 days. When Naibuka was given the charges, he had responded in accordance to his contract of service under clause 8.2.1. However, it seems that the employer had misconstrued this as annotated in the Minutes of the Staff Board meeting and thus penalized the grievor for only responding in writing. He said at the Staff Board meeting, the Manager Human Resource had circulated the Ministry recommendation and also briefed the Board of the LTA Internal investigation. Then they had gone ahead and stated in the Minutes that although Naibuka was given an opportunity to explain before Lola he replied in writing. He said that the staff board had punished Naibuka for responding in writing, when the Collective Agreement specifically stated that he should reply in writing within 14 days.
  

6.5 Mr Tofinga also cited the case of Fiji Public Service Association vs. Land Transport Authority [2007] FJAT 26; Award 27 of 2007 stating that the grievor in this case was heard on the “truth of the charges” but was not given an opportunity to be heard on the quantum of penalty.

6.6 Both parties also relied on the Central Manufacturing Company Limited v Yashni Kant (Unreported Fiji Supreme Court Case Number CBV 0010 of 2002 to argue on the point of trust and confidence in the grievor in the way he delivered his duties and responsibilities for the employer. Mr Tofinga submitted that Yashni Kant’s case was different from the current grievance because the Chairman had no business interfering with the day to day management of LTA, who did not work full time for LTA. He stated that the chairman and the grievor were not exposed to close proximity where they were likely to run into each other, hence there was no breach of trust and confidence. The employer, in counter-response argued that as held in Yashni Kant’s case, trust and confidence would have broken down at the stage of dismissal.

7.0 Final Determination

7.1 In my previous judgments I have stated and outlined in detail the law on summary dismissal that is now codified in the ERP 2007.

7.2 For ease of reference, I state that this was confirmed by the Court of Appeal in the case of Shell Fiji Ltd v Johnson [2010] FJCA 54; ABU0012/2009 (23 September 2010) at paragraph 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)....”

7.3 In the same Court of Appeal case, his Lordships went further and stated that:

“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.”

7.4 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....”

7.5 Section 33 (1) of the ERP 2007 repealing section 28 of the Employment Act is no doubt similar in various ways. It does not also confer an unfettered right to the employer to dismiss an employee except under those matters specified under s33(1)(a)-(e) where it clearly stipulates that:

“No employer may dismiss a worker without notice except in the following circumstances –

(a) where a worker is guilty of gross misconduct;

(b) for willful disobedience to lawful orders given by employer;

(c) for lack of skill or qualification which the worker expressly or by implication warrants to possess;

(d) for habitual or substantial neglect of the worker’s duties; or

(e) for continual or habitual absence from work without the permission of the employer and without other reasonable excuse.”

7.6 Under the old law (and certainly the position under the current law would be same), where there is legal confusion or lacuna in the statute, often common law position has guided the Tribunal and Courts for a clearer interpretation: however, now in the face of explicit statutory provisions (ERP 2007), to better understand how to determine whether or not a summary dismissal is “wrong” in law (substantially and procedurally), other relevant and applicable provisions in the ERP must be read and considered in its totality. These provisions are:-

“Section 33 (2) stipulates:-

The employer must, provide the worker with reasons, in writing, for the summary dismissal at the time he or she is dismissed.

Section 34 states:

If a worker is summarily dismissed for lawful cause, the worker must be paid on dismissal the wages due up to the time of the worker’s dismissal.

Section 114 provides:

If a worker is dismissed, the employer must, when dismissing the worker provide to the worker with a written statement setting out the reasons for the dismissal.

Section 7 of Schedule 4 (Section 110) stipulates: If-

(a) the worker is dismissed; or

(b) the worker is not satisfied with the employer’s written response; or

(c) the employer fails to provide, within 7 days after the day on which the employer receives the worker’s written statement, a written response; or

(d) the employer and worker have agreed to waive the requirements for an exchange of written statements and the worker is not satisfied with the employer’s response to the grievance,

the worker may refer the employment grievance to the Mediation Services in the prescribed manner.”

(Bold and/or underlining is my emphasis only)

7.7 In a normal cause, the grievor has a right to come before the ERT for redress and remedies for ‘employment grievance’ under sections 109, 110 and 111 of the ERP for any type of “dismissal” pursuant to section 7 of the Schedule 4. Under section 4 of the ERP:

“Dismissal” means “any termination of employment by an employer including those under section 33” (my emphasis).

7.8 In a similar manner, the drafters of ERP have generally intended Section 33 of the ERP as a presumption in favour of the employers where clearly the requirements for a “lawful summary dismissal”, must be adhered to. This is confirmed by section 30(4) of the ERP where it is clearly stated that:-

“Nothing in this Promulgation precludes either party from summarily terminating a contract of service for lawful cause”.

7.9 This was further clarified by your Ladyship, Wati J in her judgment of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011, where the Court 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)

7.10 Where lawful cause for summary dismissal is concerned, this goes to establishing and proving that the employer’s main reasons for termination were justified in substance and law. I must say that section 34 of the ERP makes only a reference but does not elaborate what really constitutes a “lawful cause”. Courts have attempted to define “lawful” or “just” cause as seen in the case of Davis -v- Unemployment Insurance Review Board of the Indiana Department of Workforce Development, 900 NE 2d 488 (2009), where Justice Ezra Friedlander of the Court of Appeals of Indiana wrote:

"Fault or just cause for discharge, in the unemployment context, means failure or volition, and does not mean something blameworthy, culpable, or worthy of censure. This includes, among other things, a carelessness or negligence of such a degree or recurrence as to show an intentional or substantial disregard of the employer's interest, or of the employee's duties or obligation to his employer."

7.11 In McIntyre v Hockin 16 O.A.R. 498 (1889), Justice Jill Parrish of the Supreme Court of Utah declared that:

"The term just cause connotes a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power. Additionally, a just cause reason for termination is not "trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual."

7.12 Further, Justice Laing in Caudle v. Louisville Sales & Service Inc., 1999 SKQB 276 adopted these words:

"Just cause is conduct on the part of the employee incompatible with his or her duties, conduct which goes to the root of the contract with the result that the employment relationship is too fractured to expect the employer to provide a second chance."

7.13 One would then assume section 33(1) of ERP gives the prerequisite premise upon which any summary dismissal can be effected, as long as it is based on one or any of the lawful grounds [s33(1)(a-e)] stated therein. Here the employer stated in the termination letter that it relied on the ground contained under section 33(1)(a) where, "no employer may dismiss a worker without notice except ...where a worker is guilty of gross misconduct..."

7.14 Various case-laws (State v Arbitration Tribunal & Ors, High Court Suva, Civil Action No. HBJ of 2007; Clouston & Co v Corry [1905] UKLawRpAC 66; (1906) A.C. 122 at 129; etc) have concluded that "gross misconduct" is not a concept capable of being defined. Therefore, gross misconduct is not a fixed concept and shall depend on the circumstance (as per the principle in State v Arbitration Tribunal & others, High Court, Suva, Civil Action No. HBJ of 2007).

7.15 In that sense, gross misconduct is naturally not defined by the ERP 2007, but looking at a "misconduct", this can be best described as the employee's failure to adhere to the rules and policies of the employer during working hours (and sometimes even after hours). Such behaviour is normally deliberate, intentional and not as a result of circumstances beyond the control of the employee. Gross misconduct is consequently that conduct on the part of the employee which is so bad that it destroys the employer/employee relations completely, and merits instant dismissal without notice or pay in lieu of notice (as decided in the case of Lamb v The Commissioner of Police [2011] NZERA 72]. Some common forms of misconduct that come to the ERT as grievance are: theft, fraud, dishonesty, negligence, and insubordination.

7.16 In my opinion, to class a misconduct on the scale of severity, being serious or gross, cannot be an easy task for any employer where that employer without deliberate intention has to become the first "judge" to assess whether or not it fits the gross misconduct category under section 33(1)(a) and further, whether or not it allows on the strength of evidence to declare the worker's conduct so gross in order to arrive at a guilty verdict. For this reason alone, it usually assists to have in place an explicit nature of gross misconduct that may warrant summary dismissal made known to parties either in the employment contract or polices or even Code of Conduct of the employer.

7.17 Therefore, in order to discipline and possibly dismiss an employee for gross misconduct the employer will have to be able to prove that the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

• that the rule was a valid or reasonable rule or standard;
  
• the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; and
  
• the rule or standard has been consistently applied by the employer.
  

7.18 The above guideline or indeed any guidelines are not provided in the ERP 2007 to ensure that any type of dismissal is not without fair reasons or fair procedure. Furthermore, to establish whether or not the reasons provided by the employer are good enough to justify dismissal, there should be some means for assessing this, such as:-

• Was the employer's rule or policy or behavioral standard broken?
  
• If so, was the employee aware of the transgressed rule, standard or policy or could the employee be reasonably expected to have been aware of it (You cannot discipline an employee for breaking a rule if he was never aware of the rule in the first place).
  
• Is (summary) dismissal an appropriate sanction for this transgression?
  

7.19 When establishing what were the employer's acceptable rules and policies in this grievance matter, I understand there was a Collective Agreement 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 although I saw only the relevant parts of the Collective Agreement attached to the grievor's closing submissions making reference to clauses 8.2 to 9.0, which had to do with the disciplinary procedures. That said, the Memorandum dated 27th October 2010 (disciplinary charges) and the termination letter was clear as to the extensive breaches pertaining to the Code of Conduct in the Collective Agreement. Nowhere in his response dated 9th November 2010 has the grievor contested its propriety or validity other than denying the offences pertaining to breach of Clauses 8.1.1; 8.1.2; & 8.1.12. Further LTA submitted that it is guided by the regulations specified in the Land Transport Authority Act which would empower a Vehicle Examiner to conduct his/her statutory duty which was referenced in the termination letter to have been dishonoured and broken by the grievor.

7.20 Turning to the facts, clearly in this grievance matter, the Employer, through their Executive Chairman had received a public complaint. The person providing the information to Mr Lawlor advised over the telephone that despite the vehicle had been written off, it was still issued a fitness certificate from Valelevu LTA although the vehicle had never left Lautoka. Thereby, creating a doubt as to the physical inspection process, resulting in an internal investigation.

7.21 Mr Tofinga defended the process of complaints handling by LTA submitting that Mr Lawlor had no business acting or indeed reacting to the public complaint under the terms of reference of the MOA dated 18th February, 2004. He submitted that all public complaints has to comply with the MOA and the grveior has to be put be on notice within 72 hours. He further stated that because the chairman was not an employee of LTA, it did not warrant him meddling or investigating LTA's operational or human resource matters.

7.22 That being the case, any reasonable employer can and should be concerned with such serious allegations put forward by a member of the public no matter what the mode of complaint. This goes to the core business of LTA being questioned where clearly LTA as a responsible employer and a service provider to the public, executing a statutory duty under the LTA Act, has an obligation to at least establish the truth in the allegation. While I note and understand that the MOA being part of the grievor's contract of service was clear that all public complaints must be in writing and furnished to the party against whom these complaints are apportioned, I have to say that unless the employer has no reliable and effective systems and processes to establish serious allegations against a servant of the public (which this employer is), then there is a grave need and propriety in maintaining and observing to the letter such codified standard or rule in a document such as a MOA. Here, despite the caller did not write formally to the employer, the employer did not use a technical basis not to investigate something that went against the very heart of the services provided by LTA: the safety of the road users. LTA, thus being a public servant, for it to turn down a complaint that was this serious in nature on mere technicality, in my opinion, means that it does not take its public responsibility to the transport (private or public) users, motorists, and pedestrians with vigilance and care.

7.23 Therefore, as to the weight given to the MOA dated 18th February, 2004, I note that the grievor had at no stage contested that the public allegations made against him had no basis in terms of the way it was received and furnished to him. This MOA was brought to the Tribunal's attention on the day of the hearing and based on the grievor's sworn testimony it was clear that he had full knowledge and understanding of the public allegations apportioned against him. He was also given an opportunity to defend his position which is what I perceive is the real essence of this MOA.

7.24 Indeed I agree that the Chairman of LTA is a Board member tasked with non-operational matters of the organization. However, it is also a fact that the Chairman did not act to unilaterally or arbitrarily dismiss the grievor on the public complaint alone. Instead he invoked a series of process for investigation to establish the merits in the allegation, regardless of whether or not the terms of reference were in order. Hence, a preliminary nature of investigation was conducted by the employer (not the Chairman).

7.25 Mr Emosi Caniogo of the Standards and Compliance Department of LTA was tasked to undertake a fact-finding enquiry, where he made the following recommendations in his "Internal Investigation Report" dated 29th June 2010:-

"(1) further investigation to be carried out by an independent team .....................

(2) That a statement be recorded from Mr. Naituku for further details on the inspection of ET 65...

(3) A statement of the owner of the vehicle Mr Arunesh Prasad of Votualevu ......... to be recorded ..............."

7.26 This Investigation Report had confirmed that the Vehicle Test Result Sheet was issued in Valelevu, by Mr Naituku. The Vehicle Inspection History also confirmed that the Certificate was issued by the Grievor on 20th of May 2010 at Valelevu (at page 10 and 4 of "Exhibit 1"). Also the vehicle log book belonging to the security guard did not show the vehicle was recorded manually by the Security to have entered the Employer's premises on the date of inspection. This was further confirmed by the Geo Vision Software Camera as there were no records captured by the camera on the said date to establish that the vehicle had ever entered the LTA Valelevu premises. Such compelling evidence weighed against the letter of the Supervisor – Safety Security Services (Exhibits 10) where to have both the manual and digital recording not functioning at the same time, to me does not make for a conceivable scenario to believe that chances of both failing at the same time is greater. Clearly then it is irrelevant to look into the fact whether or not the vehicle was in Lautoka on the said day of inspection: rather it is relevant to establish whether it had visited the Valelevu LTA office for inspection and issuance of fitness certificate. It seems that there was no way the grievor could substantiate this fact.

7.27 Then there was other anomalies that did not work in the grievor's favour to support his claim, The investigation report had indicated that the time of inspection was not noted on the Vehicle Test Result Sheet. While this was pleaded to be a minor oversight by the grievor, and perhaps it is a plausible excuse that he had no access to a clock or watch, it seems the employer was pedantic in recording actual time of inspection. In that case, the grievor could have asked someone, perhaps another LTA officer or even the customer. The fact that the person who brought the vehicle for inspection (Mr Atish Prasad) could not also provide this detail (time of inspection) makes it difficult to understand why there was so much mystery. The grievor also asserted that he had made a mistake as to the colour of the vehicle where he had noted it to be blue. When the statement of a mechanic, Mr Atish Prasad (at page 6 of Exhibit 1) is taken into consideration, clearly he had claimed that he had brought a vehicle by the make, Toyota Echo in white colour into the LTA Valelevu premises which was inspected by a Fijian man.

7.28 I wish to make a comment on something Mr Tofinga submitted to the Tribunal in his closing written submission dated 22 March 2012 at page 2, which appears to be a new evidence. If Mr Atish Prasad was charged with perjury subsequent to the investigation of the employer for giving a false statement to a Public Officer, this fact was neither part of the preliminary submissions or the hearing-proper evidence to prove Mr Atish Prasad's statement was false. Mr Prasad could have been summoned to come to the Tribunal to give evidence to support Mr Tofinga's claim. In any given context, this would merely prove that Mr Prasad's statement is not a credible one. It would then fall short of supporting the grievor's story that he had physically inspected a vehicle which Mr Prasad had allegedly taken for purpose of fitness test to Valelevu LTA office on 20th May 2010. Without his statement the grievor stands no chance of proving that the vehicle was brought to Valelevu which would then support the employer's assertion that there were merits in the public complaint that the vehicle was not placed in the Central division but was in fact placed in the Western Division. When further probing evidence, I find that this where the owner had usually obtained the fitness (in Nadi), since 1 July 2005 up-til 7th January 2010. Only in 20th May 2010 the said vehicle ET651 was passed in Valelevu by the grievor as shown in Exhibit 1 at page 4 - the Vehicle Inspection History.

7.29 Therefore, I further doubt Mr Atish Prasad's assertion that he had placed the number plate on the dashboard, written on a paper, hence the GEO Vision camera did not capture the vehicle coming or going out of the LTA premises. In addition, Exhibit 1 at page 9 clearly reflected that the vehicle was owned by a Mr. Arunesh Prasad whereby the colour of the vehicle was a white Toyota Sedan while Mr Atish Prasad (at page 6 of Exhibit 1) claimed that he brought a vehicle by the make, Toyota Echo, but it was white. The grievor had, however, noted the colour of the vehicle to be blue and it is not clear from the Vehicle Test Result Sheet what was the actual make of the vehicle noted by the grievor.

7.30 In my opinion, there was adequate preliminary information to cast doubt in a reasonable person's mind given the anomalies noted so far. There were too many coincidences and errors to steer the employer to conduct a full blown investigation into what is no doubt very serious allegations apportioned against a public officer entrusted with a statutory duty under the LTA Act.

7.31 Such investigation-proper was done at the instigation of the grievor who had requested for an independent investigation that was not to be done by LTA. I will come to the Ministry's report shortly.

7.32 Before that I merely reiterate that investigation exercise of the employer to establish truth in the public complaint did not seem to be a prejudicial response to the grievor pursuant to the MOA that established rules for registering and investigating public complaints. On face of the facts, the employer had reasonable basis to proceed to a proper investigation and I note Mr Emosi Caniogo in his report had recommended that proper statements from the involved parties could put to rest some of the doubts noted through an internal enquiry process. What I understand of the said MOA is that it guides both parties to certain parameters of natural justice when public complaints are received by LTA.

7.33 In the Court of Appeal case of Shell Fiji Ltd v Johnson (supra), 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 some 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.

7.34 While the facts are different here, procedural defect does not always render a grievance wrong in law or unfair in procedure. The employer here being a public servant, it is natural that public will have concerns and grievances, where to put to rest any perceived breach of the law and rules/policies of the employer, I see no harm in conducting an internal investigation, which was done in this instance, as long as due process is accorded. For example, if the grievor was in total confusion and without knowledge about the complaint or what the employer's internal investigation findings was, then it would have been easier for this Tribunal to find the employer fell foul of the MOA. The grievor had agreed to the LTA's counsel that he was aware of the public compliant. He had also sought an independent investigation and the employer complied.

7.35 On the other hand, the employer alleged that the Griever had not assisted them in their investigation as he had called for an independent investigation into the allegations leveled against him. This was stated in Mr Caniogo's Report that the Grievor had stated that: "...he would not give a statement and wanted an independent team to investigate and not the LTA staff..."

7.36 In a letter dated 19th July 2010, the Grievor then had written to the Minister for Works and Transport requesting the Minister's intervention in the investigation, as per page 4 of "Exhibit 4". This was even before the employer had suspended him.

7.37 In fact on 9th July 2010, the Griever was requested to proceed to annual leave pending further investigation, and while it seems he was on leave he wrote to the Ministry for their intervention. Upon completion of his annual leave, on 2nd August 2010 he was suspended on half pay by LTA. According to the employer they had invoked clause 8.2.3 of the Collective Agreement pending the investigation as the Employer had viewed the allegations as serious.

7.38 The Employer then strongly defended that the initiation of the Ministry Investigation by the Ministry Investigation Unit was not by the Employer but by the Griever himself through his letter dated 19th July 2010. He had called for an independent investigation. The grievor then cannot use the process of investigation as a basis to allege unlawful or unfair termination.

7.39 Further, the Grievor in his own correspondence to the Minster had also alluded to similar allegations leveled against him in 2006, resulting in his termination by the Employer. During cross-examination, the Griever had confirmed that he was terminated in 2006 on similar allegations and was later reinstated by the Minister for Transport in 2009. This was also confirmed in his letter of 19/7/10 at the conclusion of the letter. Therefore, it was not proper or relevant for the grievor to argue who had the authority to hire and fire or indeed what was the correct procedure for investigation. Or who should have steered the investigation process before recommending or endorsing a decision as to the penalty for dismissal. Or failing which, the employer should have either supplemented the Ministry's investigation or conducted its own investigation under the Collective Agreement pursuant to Clause 8.2. It seems LTA went along with what the grievor had desired in terms of an independent investigation. In that regard, all the process of the Ministry's investigation was instigated for the benefit of the grievor who I believe had hoped that since the Ministry's intervention had once cleared him of similar allegations, the same result will be in this instance. However, the grievor found this not to be the case.

7.40 In terms of the two investigations conducted by separate authorities at different times, in determining whether or not the employer had satisfied the "lawful cause" test under s34 of the ERP, this Tribunal will not substitute its views for that of the employer in determining whether or not the employer acted reasonably. Rather the Tribunal has a task to test objectively whether or not the employer had acted reasonably when dismissing the grievor (as per the principle in Michael Strouthos v London Underground Limited, England and Wales Court of Appeal (Civil) Decisions, [2004] (18 March 2004).

7.41 I have also noted his Lordship Justice Gates decision (as he was then) in the case of Philips Thomas v Fiji Electricity Authority [2004] FJHC 303 where he applied the ratio in the English Court of Appeal case of X vY [2004] EWCA Civ 662 as follows:-

"...the law on dismissal for conduct is clear. It has been said to be a four pronged test. The Foley test was cited with approval in X v Y (supra at para 18):-

"the employer must show that he believed that there had been misconduct by the employee; that there were reasonable grounds for that belief; that he had carried out as much investigation into the matter as reasonable in all the circumstance; and that the decision to dismiss him for that conduct reason was within the range of reasonable responses of a reasonable employer."

7.42 When giving his statement the grievor had stated that he had revoked the vehicle into private number plate (ET651) from its rental number plate (LR2265) on 14th of May 2010 and then he inspected the vehicle again on 20th of May 2010 when he issued the certificate of road worthiness. However, this was not confirmed by "Exhibit 9" which the Griever claimed to be a copy of the despatch book uplifted from the Employer's office. The Griever in examination in chief had stated that the LR2265 was revoked on 18th of May 2010 which was in contradiction to his initial submission that the revocation had taken place on 14th of May 2010. In actual fact, the final conclusion of the Ministry Investigation Report states that the Griever, in his capacity as a vehicle examiner, had failed to:

"(a) record the time he conducted the inspection on the Vehicle Inspection Sheet;

(b) colour of car he wrote on the inspection sheet different from the actual colour stated by the mechanic and the colour of the same car recorded in the vehicle detail sheet with the Land Transport Authority record; and

(c) no records were entered into the PSV section register stated that the rental number plate was dispatched to them and also when the private number plate was issued ..."

7.43 Apart from the anomalies noted such as getting the colour of the vehicle wrong and not noting the time of the inspection, the inconsistencies in the grievor's testimony of the account of the inspection day are far too overwhelming and supports that the employer's case that there was basis or merits in the public complaint to conduct further investigation against the grievor for alleged misconduct.

7.44 In the Court of Appeal case of Shell Fiji Ltd v Johnson (supra) his Lordships, Byrne and Callanchini J (in Full 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..."

7.45 Accordingly, 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. Regardless of the nature of the complaint and who had been at the behest of the whole investigation process (that is the LTA chairman), there was substance and merits in the allegations. In my view, there were just too many facts that was not defended by the grievor to support his claim where the records of the employer was clear that in all queries made to furnish the truth, albeit the camera not capturing the vehicle entering or existing the premises; the security log book not keeping any manual records on that day; the colour of the vehicle being wrong; the time not being entered into the inspection sheet; and no records being entered into the PSV section register that would have substantiated that in actual fact the rental number plate was despatched to them and when the private number plate was re-issued, this simply indicates that the discrepancies with the grievor's account of the facts was far greater than what would usually be the case.

7.46 What aggravates the allegations is that the grievor ought to have known and recorded certain important details such as the time and colour of the vehicle correctly despite he deals with many inspections in a day. He should have done this by virtue of his years of employment with LTA where he is a public officer mandated to carry out a statutory duty under a law of Fiji.

7.47 As to whether or not his past track record of being accused of a similar offence in 2006, regardless of whether or not it had merits or not, has any implication to this grievance, I have to state this surely helps the Tribunal to focus on the fact that the grievor was not only cautioned or pulled up for non-compliance with the employer's laws or rules/policies when performing his duty and responsibility as a LTA vehicle examiner in the past but it seems that he had not leant his lesson to avoid any similar incidents in the future. Accordingly, even if it was not proved at the material time in 2006 he had not committed an offence in respect of non-inspection of vehicles and still issuing certificate of fitness, it does not mean that in this instance he is without culpability. In the case of Sinclair v Neighbour [1967] 2 WLR 1, the Court of Appeal had ruled that one act of dishonesty was sufficient to warrant summary dismissal where it cautiously demarcated between placing less weight to the labeling of the act or misconduct with that of the facts that establish that misconduct. The employee in this case was summarily dismissed and his claim for damages for wrongful dismissal succeeded in lower court but Court of Appeal overturning verdict stated that:

"... I think that he (the trial judge) fell into error in attaching too much weight on the label and not enough to the facts. The facts were established. The fact that the manager took the money from his employer's till behind his back knowing that the employer would not consent was established; and it seems to me that it does not really matter very much whether it justifies the label 'dishonest" or not..." (my emphasis).

7.48 I thus find that there were valid reasons or lawful cause to justify summary dismissal of Mr Naituku. Such act of dishonesty which was established by the facts, negligence in performing statutory duty as a public officer and attempting to provide defence that is neither credible nor worthy of reasons believable in the circumstance, in my opinion this is clearly a very serious nature of offence committed by a public officer, which this grievor was at the time of his dismissal.

8.0 Allegation of Unfair Dismissal

8.1 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:-

"...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).

8.2 Where procedure for hearing is concerned, Wati J has further stated and I quote for quote:-

"....it is my duty to comment more on the procedure to terminate "for a cause" and "without a cause". In any given situation, the employer is not obligated under the termination clause to give any opportunity of hearing as found by the Tribunal. When the termination is without cause, what is there to hear the employee on?...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).

(Underlining is my emphasis only)

8.3 Isoa's case may not be clear whether or not any procedures are required to ascertain the guilt of the grievor (and what sort of procedures should be used) prior to declaring the alleged conduct "serious", but it is quite 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.

8.4 Here the employer had accorded the grievor a chance to respond to the allegations when they had undertaken an investigation process by Mr Caniogo but he had refused to cooperate. Later the same allegations were framed as offence/charges as per the requirement of the Collective Agreement and the grievor was again accorded 14 days to respond prior to the employer's decision to summarily dismiss him.

8.5 Foley's test cited in X v Y (the basis of the decision in Philips Thomas v Fiji Electricity Authority [2004] FJHC 303) gels easily with the principles of natural justice, where at least a fair process for investigation is required to be invoked prior to arriving at a guilty verdict where procedural fairness is concerned. But 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. The principle followed in the case of Dunning (A.J.) & Sons (Shoplifters) Ltd v Jacomb (1973) IRLR 206 is then more apt here, where the Court said:-

"...the approach developed that a procedural defect would only make the dismissal unfair if the decision might have been different at the end of the day. The trend is to see procedural matters as issues of substance to be weighted in the scales of the overall merits of the case".

7.4 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. Here, in terms of allegation of unfair dismissal the grievor is also seeking remedy in terms of compensation for distress and humiliation caused to him. The Full Supreme Court when Johnson's case was appealed [see: Shell Fiji Limited And Fereti Filipe v Benjamin Johnson Civil Appeal No. CBV No. 008 of 2010 (19 October 2011)], echoed 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..."

8.6 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 since 10th January 2011, he was without a means of livelihood. His family and his financial wellbeing are certainly affected. Notwithstanding the circumstance that led to summary dismissal, to me, however, there was nothing peculiar in this grievance. Rather there existed ordinary employment-related circumstances leading up to summary dismissal after due process of investigation was concluded. While it will be perceived that any employer's decision would be subjective in terms of deciding an employee's termination on-spot, this is prevented under the law, pursuant to section 33(1)(a-e) of the ERP. Clearly the statutory test requires justification for only "lawful cause" before one or any of the five permitted grounds are allowed. In this case, summary dismissal was justified, substantially and procedurally on the merits of the case that proved there was serious misconduct by the grievor. The employer thus has a presumption in its favour as a right to invoke and exercise s33 of the ERP.

9.0 Decision and Orders

1. The Employer's decision to terminate grievor's contract of service pursuant to s33(1)(a) of the ERP is declared lawful and fair.
   
2. Accordingly, the grievor's claim for unlawful and unfair dismissal is dismissed forthwith. No remedy is awarded to the grievor.
   
3. The parties will bear their own cost in this matter.
   

DATED at Suva this 10th day of April 2013.

LEGAL TRIBUAL

^[1] Shell Fiji Limited And Fereti Filipe v Benjamin Johnson Civil Appeal No. CBV No. 008 of 2010 (19 October 2011).