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Fiji Bank and Finance Sector Employees Union v Bank of Baroda [2008] FJAT 13; Award 13 of 2008 (27 March 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 13 OF 2008

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI BANK AND FINANCE SECTOR EMPLOYEES UNION

AND

BANK OF BARODA

FBFSEU: Mr P Rae
BOB: Mr V Maharaj

DECISION

This is a dispute between Fiji Bank and Finance sector Employees Union (the Union) and Bank of Baroda (the Employer) concerning a claim for extended sick leave by Mr Salesh Naidu (the Grievor).

A trade dispute was reported by the Union.

The report was accepted by the Permanent Secretary who referred the Dispute to a Disputes Committee.

Subsequently the Minister authorized the Permanent Secretary to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 5A (5) (a) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 15 October 2007 with the following terms of reference:

"over the Banks failure to grant Mr Salesh Naidu extension of inpatient sick leave of twenty-four days from 14 of June to 17 July 2006 in accordance with clause 8 (viii) of the Collective Agreement and Bank’s unilateral decision to change Mr Naidu’s annual incremental date in breach of clause 6C and 6K of the Collective Agreement. The Union seeks the extension of Mr Naidu’s inpatient sick leave by twenty-four days, restoration of twenty four days pay deducted as leave days without pay and re-instatement of his annual increment date to 6th December 2006 and thereafter 6th December of each coming year."

The Dispute was listed for a preliminary hearing on 19 October 2007. On that day the parties requested time to file preliminary submissions by 21 December 2007 and the Dispute was listed for mention on 30 January 2008.

The Employer filed its preliminary submissions on 31 December 2007 and the Union did so on 11 January 2008.

When the Dispute was called for mention on 30 January 2008, the parties were directed to file a signed Statement of Agreed Facts within 21 days and the Dispute was listed for further mention on 29 February 2008.

A signed Statement of Agreed Facts dated 15 February 2008 was filed on 18 February 2008.

On 29 February 2008 the parties advised the Tribunal that they did not wish to make any further submissions and would rely on their preliminary submissions which had already been filed with the Tribunal.

At the outset the Tribunal would like to indicate to the parties that their signed Statement of Agreed Facts is unfortunately short on facts. Paragraphs 1 and 2 are the only paragraphs that contain statement of facts.

Paragraph 1 states that the Grievor was at all material time an employee of the Bank.

Paragraph 2 states that at all material time the Grievor was a member of the Union.

Paragraph 3 is a legal conclusion. Paragraph 4 and 5 set out the Union’s claim. Paragraph 6 is an incomplete statement of fact as it does not give the dates. Paragraph 7 is a pleading by the Employer.

It would have been of assistance to the Tribunal if the parties had indicated their agreement on the nature of the Grievor’s illness and the dates on which he was absent from work. The dates of leave applications and the dates of decisions in relation to those applications should have been provided. The correspondence passing between the Grievor and the Employer, and the Union and the Employer should have been itemized if agreed upon. Any relevant medical reports should also have been included in the Statement of Agreed Facts.

The Dispute is essentially concerned with the meaning of clause 8 (viii) of the Collective Agreement and whether the Employer has complied with the provision.

There is a second issue concerning the date of incremental increase due to the Grievor which requires the Tribunal to consider clause 6C (and 6B) and 6K of the Agreement.

Clause 8 (viii) of the Collective Agreement states :

"SICK LEAVE

The Bank will continue to make available to its employees sick leave and medical benefits as described below:

- - - - - -

Inpatient: 30 consecutive days per annum and after discharge from hospital and certified by doctor as needing time to recuperate, shall have his case considered on merits."

The inpatient sick leave entitlement is a per annum entitlement. This means that in any 12 month period the employee is entitled to claim inpatient sick leave. The 12 month period will run from the date an employee commenced employment in accordance with his/her contract of service and for each 12 month period after the conclusion of the first anniversary.

There are two components to the inpatient sick leave entitlement. This is indicated by the use of the word "and" after the words "per annum".

The first component is 30 consecutive days per annum. The use of the word consecutive indicates that all seven days of the week are to be counted for the purpose of calculating the total number of days of inpatient sick leave, as distinct from only working days. It does not mean that the entitlement is for one period of hospitalization of up to 30 consecutive days. There may be in any given year, two or more periods of hospitalization totaling 30 consecutive days.

The second component is additional leave to be classified as inpatient sick leave for time needed for recuperation after discharge from hospital if certified by a doctor. This second component is not automatic. Even if the two conditions are satisfied, the Employer is only required to consider the case on its merits.

This second component need only be considered by the Employer if it is for absence following discharge from hospital and is certified by a doctor as time needed for recuperation. The Tribunal is satisfied that the recuperation must be directly related to the hospitalization as an inpatient. It must be said that the use of the words "shall have the case considered on merits" may not add a great deal to the clause. If there is a bona fide certification from a doctor that absence from work post discharge is genuinely needed for recuperation, it is difficult to imagine what other merit the employee would need to establish.

However, as there is no time limit applicable to this second component the duration of the time certified by the doctor for recuperation would definitely be a matter that the Employer would be entitled to consider on the question of merits of the case.

It also follows from this that the first component which is an automatic entitlement upon proof of hospitalization, applies only to the days actually spent in hospital as an inpatient.

In this Dispute the Grievor was absent from employment from 14 February 2006 to 6 March 2006 (21 consecutive days) and again from 2 June 2006 to 17 July 2006 (46 consecutive days).

In relation to the first period of absence the Grievor was an inpatient at the Lautoka Hospital overnight 14/15 February 2006 (which for the present purposes has been presumed to be 1 day).

In relation to the second period of absence the Grievor was an inpatient at the Lautoka Hospital between 4 June and 16 June 2006 (which, if it is assumed that the Grievor was admitted on 4 June and discharged on 16 June, represents 12 overnight stays and hence 12 consecutive days).

This means that the Grievor used a total of 13 consecutive days as an inpatient out of his entitlement of 30 consecutive days inpatient sick leave.

In relation to the balance of time the Grievor was absent from employment in the first period of absence, the Grievor could only be granted inpatient sick leave under the second component of the entitlement. In other words, it was post discharge from hospital and it must have been certified by a doctor as time needed for recuperation. If it was considered on its merits and approved then that is the end of the matter. The Tribunal would add that there may be some doubt about the need for 20 days recuperation from one day in hospital.

As for the balance of time in the second period of absence from employment, there are a couple of days before hospitalization and a number of days post discharge from hospital.

The 2 days prior to hospitalization should be treated as outpatient sick leave (if available) or as leave without pay.

The days absent from employment post discharge must be considered under the second component of the inpatient sick leave entitlement. If there was a doctor’s certificate that indicated that some or all of the period of absence was needed for recuperation, then the Employer was required to consider the application on its merits.

Although none of the correspondence has been admitted by consent into evidence nor referred to in the Statement of Agreed Facts, it would appear that the Employer has not considered on its merits the application for in patient sick leave under the second component of the entitlement for certified recuperation.

With no agreed material before the Tribunal, it is not desirable for the Tribunal to make any award which would compel the Employer to grant the application. The Tribunal can only direct the Employer to consider the application for post discharge certified recuperation leave for the period 16 June to 17 July 2006 on its merits in accordance with the second component of the entitlement to inpatient sick leave under clause 8 (viii) of the Agreement and in accordance with the Tribunal’s observations. In doing so the Employer should note that it is obliged to exercise its management discretion in a fair and reasonable manner rather than arbitrarily or irrationally. The Grievor must be advised as to the decision concerning his application and should be given reasons if the application is declined.

The issue relating to the amended salary review date is more straight forward. Clause 6K states:

"Annual salary review date for the purpose of progression within the salary range of the Grade to which the employee is assigned shall be:

On the anniversary of the commencement of service or employee’s birthday whichever is the current practice Except those employees whose salary has been reviewed on promotion to a higher grade shall have their future review on the anniversary of their promotion."

There is no provision in the Collective Agreement which would allow the Employer to adopt a practice which differed from the requirements of clause 6K. The Employer did not have the authority to fix a review date which did not comply with clause 6K.

AWARD

The Employer is directed to consider the Grievor’s application for post discharge certified recuperation inpatient sick leave for the period 16 June to 17 July 2006 on its merits in good faith under clause 8 (viii) of the Agreement.

The Tribunal will remain seized of the Dispute for the parties to refer the matter back to the Tribunal in relation to this matter provided that a detailed and proper Statement of Agreed Facts is filed.

The Employer was not authorized by the Agreement to vary the practice prescribed by clause 6K in relation to the date of salary reviews.

DATED at Suva this 27^th day of March 2008.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL