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State v Arbitration Tribunal, ex parte Air Pacific Ltd [2013] FJHC 134; Judicial Review 35.2008 (22 March 2013)

IN THE HIGH COURT OF FIJI
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 35 OF 2008

BETWEEN :

THE STATE

AND :

THE ARBITRATION TRIBUNAL
RESPONDENT

AND:

THE TRANSPORT WORKERS UNION
INTERESTED PARTY

EX PARTE:

AIR PACIFIC LIMITED
APPLICANT

Appearances: Mr Peter Knight for the applicant

Mr R. Singh for the interested party
Date of hearing: 30th April, 2012

JUDGMENT

1. This is an application by Air Pacific Limited for judicial review against a decision of an Arbitration Tribunal . On 7 August, 2008, leave had been granted to the applicant to apply for judicial review.
   
2. The application for judicial review
   

2.1 The application arises from a dismissal of a flight attendant employed by the applicant. There followed a trade dispute reported by the Interested Party, the Transport Workers Union. The dispute was referred to an Arbitration Tribunal(Tribunal), in terms of section 5A(5)(a) of the Trade Disputes Act. The terms of reference read as follows:

" for settlement over the termination of employment of Mr Iliesa Tabua with effect from 21 May 2007. The union views the employer's actions as unjust and unfair and seeks his re-instatement without loss of pay and benefits with retrospective effect from 21 May 2007."

2.2 The Tribunal, in its Award of 17 June, 2008, held that the summary dismissal of this employee/ "Grievor" without any warning was unjustified and unfair. It was determined that he be reinstated with effect from the date of dismissal, paid six months wages with the balance deemed to be leave without pay and a final written warning be issued to him.

2.3 The applicant seeks an order of certiorari to quash the decision of the Tribunal and a declaration that the decision to reinstate the employee is invalid, void and was incorrectly reached.

2.4 The grounds, upon which the applicant seeks relief, are as follows:

1. The Tribunal erred by concluding that summary dismissal was unavailable to the applicant, in the circumstance of the case.
   
2. The Tribunal took into account irrelevant considerations, namely that the employee's "level of maturity in particular his attitude towards the consumption of alcohol did not appear to the Tribunal to be of a high standard. However that was a matter that a responsible employer should handle in an appropriate and responsible manner through some form of guidance or counselling."
   
3. The Tribunal failed to consider the following relevant considerations, namely that the employee reported for duty while intoxicated, as accepted by the Tribunal; his conduct was a breach of company policy, as also accepted by the Tribunal; his conduct had serious safety implications; his conduct was a potential criminal offence; the responsibility for flight safety lies with the employer; his conduct had serious potential ramifications for the employer's reputation; the employee attempted to avoid a blood test, a fact not disputed;his conduct was incompatible with the faithful discharge of his duty to his employer; and the Tribunal erred when it held that the minutes of the disciplinary hearing did not contain any reference to an additional matters in charge 2.
   
4. The Tribunal erred in ordering reinstatement, and failed to apply the relevant test namely, whether the mutual trust and confidence which is central to the employee and employer relationship, had been affected.
   

3. Notices of Opposition
   

3.1 The respondent, in its notice of opposition, opposes the application on the following grounds –

1. The reliefs sought are inappropriate, as it would require the court to substitute its views and decision for that of the Tribunal. The application is in the form of an appeal against the decision of the Tribunal.
   
2. The Tribunal correctly decided that the employee's misconduct was not sufficiently serious to justify his summary dismissal of the employee, without a previous formal warning.
   

100. The Tribunal took into account relevant considerations and acted reasonably and fairly, when it concluded that the dismissal of the employee was unjustified and unfair.
     

4. The application for judicial review is frivolous and vexatious .
   

3.2 The Interested Party, in its notice of opposition, opposes the application for leave to apply for judicial review on the same grounds and states further that the applicant does not have an arguable case

4. The background
   

4.1 On 29th May, 2007, the employee was served a charge sheet and suspended from duty. The charges against him were in these terms:

1. Wilful neglect of duty and misconduct during tour of duty.
2. Breach of the Cabin Crew Administration Manual (CCAM) Chapter 1,Page 18 'Personal Conduct whilst on a Tour of Duty'. Chapter 1 Page 15'Alcohol and Kava', Chapter 1 page 3 'Cabin Crew Administration Manual'.
3. Breach of Company Policies and Procedures Manual [CPPM] Part 1, Section 14 'Employee Behaviour' Policy No 3 and CCAM Chapter 1 page 19.
   

The particulars of the first and second charges provided that the employee was found to be in an intoxicated state and smelled of alcohol at the commencement of crew briefing. He was "therefore considered to be unfit to operate as a safety and customer service professional". The particulars continued to state that "it was visible that (he) had not shaved and (his) eyes were blood shot,(when he was) expected by the Company to be "immaculately groomed" for your tour of duty...".

4.2 On 6 June, 2007, a disciplinary inquiry had taken place.

4.2.1 By letter dated 5 July, 2007,the employee was informed of the following findings of the disciplinary inquiry :

1. It was stated that the medical report of the doctor who took his blood test had confirmed the alcohol level in his blood sample. On the first charge, the letter concluded that "this wilful neglect of duty is a serious breach of your employment conditions and is an unacceptable disposition for our service professionals who interface with our customers".
   
2. As regards the second charge, the letter provided that he had breached company regulations by "dead-heading to base on flight FJ 411 Saturday 19 May 2007 under the influence of alcohol".
   

100. On the third charge, it was stated that he had failed to ensure he was properly groomed to required company standards as stipulated in the Cabin Crew Administration Manual(CCAM) and the Company Policies and Procedures Manual (CPPM).
     

4. The employee was informed that he could be represented at the mitigation hearing on 6 July, 2007.
   

4.2.2 By letter dated 19 July 2007, the employee was informed that the employer had considered all the mitigation factors presented by him .Taking into account the totality of the circumstances including the seriousness of the charges, it was concluded that termination of his employment was appropriate in terms of clause 5.2 of the Cabin Crew Collective Agreement.

4.3 The Award of the Tribunal

4.3.1 In respect of the first charge, the Tribunal was "satisfied that the applicant was entitled to conclude that the employee's appearance and his intoxicated state at the pre-flight briefing constituted misconduct during his tour of duty".

4.3.2 The Tribunal, quite correctly expressed its concern that there was no reference in the charge sheet to any incident of "dead-heading" on a flight on 19 May, 2007. This was subsequently, referred to in the letter of 5 July, 2007, addressed to the employee, as the basis of establishing the second charge.

4.3.3 As regards the third charge, the Tribunal accepted that the employee's misconduct constituted a breach of the Company Policies and Procedures Manual (CPPM).This provides that the

"Company expects all employees, irrespective of their work in the organisation, to adopt a responsible attitude toward their work and to conduct themselves in such a manner so as to maintain good image and promote the operations and commercial interest of the Company."

The Award declared as follows:

"The Tribunal has no doubt that by reporting for work under the influence of alcohol and in an intoxicated state the Employee must incur some form of disciplinary sanction. An aggravating factor to be taken into account was that the Employee's appearance was not up to the standard that the employer was entitled to expect and which the Employee knew or ought to have known was unacceptable. The Tribunal is satisfied that the Employee was not in a state whereby he could perform and appear to perform his duties to the required standard. The issue is whether the dismissal was unjustified and unfair in all the circumstances."(emphasis added)

"The Tribunal has concluded that the Grievor's misconduct was not sufficiently serious to justify the Employer proceeding to a stage 4 dismissal without any previous formal warning of any description. The Tribunal has concluded that a reasonable Employer would not have considered summary dismissal as being with the range of penalties appropriate". (emphasis added)

5. Does the ERP apply?
   

At the commencement of the hearing, counsel for the applicant, Mr Knight submitted that the curtain has been brought down on the Award under review, by clause 30 (2) of the Essential National Industries Employment Decree no 35 of 2011, which brings in the Employment Regulations Promulgations, 2007(ERP).

By virtue of section 59 of the Employment Relations (Administration) Regulations 2008, all trade dispute cases referred to the Arbitration Tribunal before the commencement date of the ERP,( namely 2nd April, 2008), continue in force until the "completion date", defined as "not more than three months from the commencement date". The Award, in the present case, was made on 17 June, 2008, within three months. Accordingly, neither the Essential National Industries Employment Decree nor the ERP applies.

6. The determination
   

6.1 It is undisputed, as held by the Tribunal, that the employee's conduct was an act of misconduct and in breach of company policies. The issue before me is whether the applicant acted unfairly in summarily dismissing him, without a warning.

6.2 The employee was dismissed in terms of clause 5.2 of the Cabin Crew Collective Agreement, which provides that a flight attendant may be dismissed without notice for misconduct or neglect of duty. The Tribunal, in its Award, noting that this clause must be read with section 28 of the Employment Act(now repealed) states this section "retains the common law right of the Employer to summarily dismiss an employee for serious misconduct which falls within one of the five circumstances listed in the section. The critical point is that the misconduct must be serious misconduct that would justify the Employer regarding the employment contract as being discharged".(emphasis added)

6.3 Section 28 sets out five instances where an employee may summarily dismiss an employee. The first as contained in sub-section (a) reads as follows: "(a) where an employee is guilty of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of service."

6.4 In my view, the language of the section does not require that the misconduct must be serious. The concept of "gross misconduct" is brought in by clause 30 of the Cabin Crew Collective Agreement, as observed by the Tribunal.

6.5 In my judgment, to report to work in an intoxicated condition constitutes gross misconduct. It seems to me that it is proper to conclude in the obvious reality of the situation, that the employee's conduct justified immediate dismissal. The applicant has provided cogent reasons why the employee can no longer command the confidence of his employer. I do not accede to the finding of the Tribunal that an admonition was warranted.

6.6 In my view, the Tribunal has failed to consider, as contended by the applicant, a number of relevant issues, in particular, the safety and the policies that Air Pacific imposes to ensure that aircrew do not report for duty while intoxicated and the message that would be relayed to other employees, if a member of staff reports to work drunk and is permitted to work and appear before passengers in an unkept state. Lord Templeman in Reg. v Inland Revenue Commissioners, Ex parte Preston, [1984] UKHL 5; (1985) A. C. 835 at 862:

"Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers."

In Brind v Secretary of State[1991] UKHL 4; , (1991) 1 ALL E.R 720 at 725 Lord Templeman said:

"The English courts must, in conformity with the Wednesbury principles ... consider whether the Home Secretary has taken into account all relevant matters and has ignored irrelevant matters These conditions are satisfied by the evidence in this case, including evidence by the Home Secretary that he took the convention into account. If these conditions are satisfied, then it is said on Wednesbury principles the court can only interfere by way of judicial review if the decision of the Home Secretary is 'irrational' or 'perverse'." (emphasis added)

Lord Lowry, speaking of "Wednesday unreasonableness" in the same case stated at page 738:

"A less emotive, but, subject to one qualification, reliable test is to ask: 'Could a decision-maker acting reasonably have reached this decision?' The qualification is that the supervising court must bear in mind that it is not sitting on appeal, but satisfying itself whether the decision-maker has acted within the bounds of his discretion. (emphasis added)

In my judgment, the application for judicial review succeeds .

7. Orders
   

(a) The applicant is granted an order of certiorari quashing the decision of the Arbitration Tribunal and a declaration that the decision to reinstate the employee is invalid, void and was incorrectly reached.

(b) The respondent and the Interested party shall pay the applicant costs summarily assessed in the sum of $ 1500.