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Cere v Air Terminal Services (Fiji) Ltd [2017] FJET 25; ERT Grievance 198 of 2017 (11 December 2017)

IN THE STATUTORY TRIBUNAL, FIJI ISLANDS SITTING AS THE EMPLOYMENT RELATIONS TRIBUNAL
Decision

KEYWORDS: Employment Relations Act 2007; Unjustifiably and unfairly dismissed; Employee theft at work; Prior inconsistent statements; Right to be heard.

Background

1. This is a grievance that has been referred to the Tribunal from the Mediation Service in accordance with Section 194(5) of the Employment Relations Act 2007. The Grievor was terminated in his employment for wilful misconduct and claims that the process that led to his dismissal was unfair and that the outcome was not justified.
   

The Case of the Employer and Justification for the Dismissal

2. The Employer is involved in the ground handling and catering services within the Fijian airport network. The Grievor was engaged as a Ramp Equipment Driver under the terms and conditions of employment set out within the Agreement Between Air Terminal Services (Fiji) Limited and Federated Airline Staff Association (“the Master Agreement”).
   
3. Employees working in various roles such as the Grievor, were issued with company uniforms and safety work boots, consistent with the nature of the work and the need for personal protective equipment. The incident that gave rise to the Grievor’s dismissal in employment, comes about when he was apprehended on Close Circuit Television Video (CCTV) having removed a pair of safety boots from on top of another worker’s locker without permission. In video footage^[1] shown to the Tribunal,^[2] the Grievor can be seen removing the safety boots from on top of the locker of a co-worker, Mr Jiuta Sigalevu on 22 January 2017 and returning them with the assistance of another employee on 29 January 2017. The case of the Employer is that the Grievor took those boots without permission of Mr Sigalevu and had only returned them after having being alerted to the fact that a complaint had been lodged and an investigation commenced, into their whereabouts.
   

The Process followed by the Employer in Dealing with the Conduct

4. Article 26 of the Master Agreement sets out the procedures that must be followed by the company when dealing with alleged misconduct that may lead to disciplinary action. First and foremost, the worker must understand the charges levelled against her or him. Secondly, where the alleged misconduct is regarded as serious, the worker may be stood down pending a Disciplinary Inquiry that is to be conducted by a Disciplinary Committee, consisting of an equal representation of Company and Association representatives, conducted under the stewardship of a jointly agreed Chairperson. It is the Disciplinary Committee’s function to make a decision as to whether the allegations levelled against the worker are made out and to make a decision to be conveyed to the worker as to what the appropriate disciplinary sanction, if any, will be.
   
5. The final phase within that procedure, provides for an appeal against the Disciplinary Committee recommendation, by either the worker or the company, to an Appeal Committee. That Committee is constituted by one Company and Association representative, with a Chairperson appointed by mutual agreement of the parties.
   

Findings of the Disciplinary Committee

6. The Disciplinary Committee formed to consider the charges levelled against the Grievor, found that he was guilty of misconduct and that as a result, he was also guilty of breaching both the general principles set out within the Company’s Code of Conduct, as well as its Ethical Values.
   
7. That Disciplinary Committee recommended in its communication dated 12 April 2017, that the Grievor be:-
   
   • Demoted to the position of 1^st year Loader Customs Hall;
   • Not considered for promotion for a two year period; and
   • Issued with a final warning letter.^[3]
8. On 19 April 2017, the Employer appealed against the Disciplinary Committee decision and an Appeals Committee was constituted for that purpose. During the proceedings before this Tribunal, the Chairperson of the Appeals Committee, Mr Elvis Chandra, gave evidence in relation to the processes that he and his fellow members took, in the re-evaluation of the earlier decision. On 21 August 2017, the Appeals Committee advised the Grievor of its decision that:-
   
   • The Disciplinary Inquiry committee penalty decision was too lenient and inadequate as the deliberate violations of this nature (pilferage) will not be tolerated; and
   • The Disciplinary Inquiry committee penalty decision will be overturned to Termination of your service.
     

Implication of the Appeal Committee Decision

9. The dismissal letter that was issued to the Grievor by the Employer on 29 August 2017, in effect relies on the outcomes of the Appeals Committee as the justification for the dismissal decision. Of course an employer is free to assign, what would ordinarily be its own responsibility to make such decisions, to a process such as set out within the Master Agreement. As stated in a recent decision involving the same employer, it is a most unusual process and one that seems to be fraught with problems. In any event, whichever way the dismissal decision comes about, it still must submit to the statutory interrogation of the unjustifiable and unfair dismissal requirements provided for within the Employment Relations Act 2007.
   
10. During the course of proceedings and the giving of evidence from the witnesses called by the Tribunal,^[4] the Employer^[5] and the Grievor himself, provided some exposure to weaknesses in the interview processes that were adopted by the Disciplinary Inquiry Committee. For example, the original complainant who claimed to have had his boots stolen, Mr Sigalevu, was not interviewed by that committee, albeit that the Grievor had provided a statement suggesting that he and the complainant had been involved in ‘horseplay’ and that the missing boots, was nothing more than that. The Tribunal was also concerned with the fact that Mr Sunia Bukalidi, a person also named within one of the statements provided by Mr Sigalevu dated 2 February 2017,^[6] was also not interviewed to understand the nature of what would otherwise be no more than hearsay evidence pertaining to a similar allegation.^[7] It was also the case, as became clear during the cross examination of Messrs Chandra and Donaldson, that the Grievor had not been shown the relevant CCTV footage pertaining to the incident.^[8]
    
11. All of these issues are important ones insofar as questions of natural justice and fairness in process are concerned. Though the role of the Tribunal should militate against any undesirable outcome, by being able to interrogate without fear or favour, all of the relevant issues, in order to ascertain whether the dismissal was either unjustifiable or unfair.
    

The Case of the Grievor

12. The case of the Grievor is somewhat difficult to comprehend. In part, this arises out of the fact that he has in effect altered his version of events and explanation of his conduct. For example, in his statement provided to the Employer dated 31 January 2017, that is following having been apprehended on CCTV footage as having taken the safety boots in question, the Grievor stated:
    

“I started my shift at 11.00-1900. After signing on I came up to the locker room, I came in I saw Jiuta Sigalevu locker. I was doing horse playing, We also joked and played around lots of time I had his safety boots left inside my locker. Then I return it to him, Apologised for my horse play to him. I apologised it was unintentionally (sic)”.

13. On the other hand, during his Evidence in Chief, the Grievor said that he had asked permission from Mr Sigalevu could he borrow his safety boots, as his own were wet. Mr Cere, told the Tribunal that he then kept them for a few days as they were wet and that he only returned them upon understanding that Mr Sigalevu had believed they were missing. When asked by the Tribunal, as to why the Grievor had not returned the boots himself, as opposed to having another employee^[9] return them for him, he replied, words to the effect that “he was getting changed”. When asked by the Tribunal why he didn’t place the boots on top of Mr SIgalevu’s locker upon entering the change room? The Grievor replied, that the boots were underneath his clothing in his bag. The Tribunal does not accept either of these accounts as being particularly credible responses in the circumstances. In the first place, as the CCTV footage showed on 22 January, the Grievor had retrieved the boots from the back of the locker, whilst getting changed. It simply makes no sense that he could not have placed them back on the locker in that same way. Secondly, the Tribunal finds it hard to comprehend why the Grievor could not simply take the boots out of the bag that he entered into the room with and place them on top of the locker. The more plausible explanation seems to be,^[10] that the Grievor did not wish to be seen to be personally returning the safety boots that were known by staff to have been stolen at work.
    
14. During the giving of his evidence, the Grievor also indicated that on one previous occasion, he had also submitted to a Disciplinary Inquiry because of practices concerning the loading of cargo.
    
15. Within the Grievor’s Closing Submissions,^[11] the following key themes arise:-
    
    • (a) That the Review Committee or its Chairperson do not have powers to impose disciplinary action;
    • (b) That any dismissal decision reliant on the tainted ATS Disciplinary Inquiry Submission, would be unfair;
    • (c) That the dismissal would be unfair, because the Griever was excluded from the Committee of Review proceedings in breach of his right to be heard;
    • (d) That the dismissal was unfair by virtue of the agreement that had been entered into between the Chairperson and the ATS representative of the Committee of Review, in contravention of Article 26E of the ‘Master Agreement’ between the parties;
    • (e) That the grounds of the appeal by the Employer against the decision of the Disciplinary Committee, contravened the scope of those available under the terms of Article 26 D of the Master Agreement; and
    • (f) That the burden of proof rests on the Employer to establish that the dismissal “was both substantively procedurally just and fair”.
      
16. There are two central arguments that arise. The first, is that the Agreement Between Air Terminal Services (Fiji) Limited and Federated Airline Staff Association (“the Master Agreement”) binds and is enforceable by the Grievor, by virtue of Section 164(1)(b)(1) of the Employment Relations Act 2007. In effect what is argued, is that where there is non-compliance with the various provisions contained within Article 26 to the Agreement as it relates to the Disciplinary Procedure, then any decision arising out of such non-compliance cannot be viewed as a valid one. Certainly the Tribunal accepts the arguments of the Grievor, insofar as there are aspects of the process that have been adopted that appear unclear or inconsistent with the language within the various paragraphs of that Article. But the issue that follows at this stage, when the dismissal decision has been effected, is what is the way in which these claimed irregularities should now be addressed?
    
17. In accordance with the Grievor’s Submissions at paragraph 16, the remedy that is sought is reinstatement, reimbursement and compensation. The Grievor has not sought, as possibly he could have done, orders from the Employment Court asking that the ‘disciplinary issue’ be remitted to another Disciplinary Committee or Committee of Review, in order that they exercise their function according to the terms of the Master Agreement. Instead, the Grievor has elected to pursue a grievance through the Mediation Service and now to this Tribunal and by doing so, asks that a determination be made, as to whether the dismissal was justified and fair. To that end, whilst the submissions of the Grievor are noted insofar as it alleges the non-compliance by the committee members to various aspects of Article 26 and the failure to adopt more broadly principles of natural justice, that in itself does not drive the way in which a hearing and determination of the substantive issues is concerned. These proceedings have been conducted de novo and as a result, whilst the deliberative activities of the Disciplinary Committee and Committee of Review are of interest, they do not form the focal point of the analysis. That focal point can only be, whether the conduct of the Grievor ultimately gave rise to a justifiable dismissal by the Employer.
    

18. There is of course an interesting argument that ensues and that is, whether a decision to dismiss a worker in a manner inconsistent with the terms of an enforceable Industrial Agreement, can ultimately give rise to a justifiable dismissal. As was raised by the Tribunal in the case of Lagi v Nadi Town Council[12], the failure by an employer to observe the terms of a Collective Agreement, may not necessarily render the decision unjustified. It may be argued that it nonetheless renders the decision unlawfully made, but the remedy in such cases, unless the matter is remitted back to the decision makers to ensure compliance with those statutory steps, must otherwise be found within the nature of the remedy being sought. The Tribunal’s role is to in effect take the place of those involved in the making of the dismissal decision and evaluate whether or not the Grievor has been unjustifiably and unfairly dismissed. If it is the case that an individual worker seeks the enforcement of a provision of a Collective Agreement, then a different proceedings should have been instituted. Whether or not, there are other remedies that arise out of such a breach, by way of penalty for example, is perhaps also a possible consideration.[13]
19. The other aspect that is equally as important out of all of this, is that which has been referred to within Dutt v Air Terminal Services (Fiji) Ltd[14] where the Tribunal stated:
At some stage the parties may need to think whether or not the Disciplinary Committee has in fact a role that recommends dismissal decisions, rather than authorises them. It needs to be kept in mind that the employment contract is one made between the individual employee and the Employer and not the Disciplinary Committee.

20. The second argument raised by the Grievor, is founded upon the principles of natural justice, fair hearing and a right to be heard. Whilst in the present case, the dismissal was not undertakenarily, the observations mads made within the decision of Vulaca v Land Transport Authority[15] are nonetheles, where this this Tribunal stated:

The Employer seems to be relying on the case of Caers Fiji Ltd v Latianara[16] to support the view that there need not be any right to be heard, where it believes that it can summarily dismiss an employee. This clearly shows why employees need to be certain that their actions are justified. A summary ssal that is not justified fied will therefore expose the employer to remedies under statute. One really good reason why employers should provide employees the right to be heard, is so that they do not get the decision wrong. Obviously there will be on occasions quite clear cases, where little is to be gained by hearing from the employee, but this is not one of those cases.