IN THE EMPLOYMENT TRIBUNAL
AT SUVA

Dispute No. 12 0f 2009

BETWEEN:

FIJIAN TEACHERS ASSOCIATION

AND:

FIJI INSTITUTE OF TECHNOLOGY

Fijian Teachers Association: Mr. M. Namudu 
Fiji Institute of Technology: Mr. J. Semisi

DECISION

This employment dispute was initially reported by the employer the Fiji Institute of Technology (FIT) against the Fijian Teachers Association (FTA) and is over the interpretation of Discretionary Leave Entitlements under clause 22.2 of the partie's collective agreement. The FIT contends that discretionary leave is given at the discretion of the employer based on the need for development of staff that needs performance improvement or those who wish to attend training to improve on their knowledge and skills. 

The above are the terms of reference of the dispute when referred to the Employment Relations Tribunal ("the Tribunal") for interpretation. At the Tribunal the parties made written submissions and FIT through its legal counsel called a Mr. Josua Mataika to give evidence

Evidence of Mr. Josua Mataika for Fiji Institute of Technology

Mr. Mataika is currently the Deputy Director of FIT, has been in employment since 1981 and he professed to be familiar with the Collective Agreement that was entered into in 1997. The collective agreement is on the terms and conditions of employment of teaching staff of the Fiji Institute of Technology. 

Mr. Mataika told the Tribunal that he was not involved in the making of the agreement but was part of the management board at that time and would discuss issues embodied in the collective agreement.

When asked to explain the meaning of discretionary leave. Mr. Mataika went back to 1994 when Dr. John Harre was in charge at FIT and what he called a period of "apprehension" and that leave was a point of contention: the school system was used and eleven weeks leave was enjoyed in a year. Now with FIT going into autonomy and the change in mindset there is the need for the staff to upgrade their skills and for career development. He continued that a staff would request to upgrade her or his skills by applying for discretionary leave.

Mr. Mataika in giving evidence told the Tribunal that discretionary leave was eligibility and not an entitlement like annual leave. He took the Tribunal back to the periods from 1996 to 1999 when the staff adopted the practice of taking discretionary leave as part of the annual leave. Discretionary leave was issued by way of application and may be applied together with annual leave or separately. This was adduced as evidence through Tribunal Exhibits 2 & 3. Witness said that old habits die hard and as a result, teachers were often late for their classes.

Mr. Mataika in closing stressed to the Tribunal that FIT has now come to a stage where the teaching machinery as he called it must not be interrupted and that discretionary leave would have to be taken during semester breaks. He agreed that the teaching schedule should not be compromised and that on resumption after discretionary leave a teacher should produce a report to the FIT.

On cross examination by Mr.Maika Namudu, Mr. Mataika was asked what would happen in the case of a teacher who has completed all the training and upskilling and whether he could take his discretionary leave with his annual leave to be utilized together. He said that would not be permitted and that any discretionary leave must be linked to upgrading and upskilling.

Mr. Namudu then put it to Mr. Mataika that the leave issue has been around since 1996 and that all the affected unions have not been consulted and that it had not been brought up for discussions during negotiations. Mr. Mataika disagreed and maintained that it was discussed at negotiations but that no agreement was reached. He agreed however that any amendment or change should be discussed together by the parties.

Mr. Mataika also explained to the Tribunal that academic teachers are also eligible for discretionary leave and that normally go for attachments to law firms or other corporate organizations. He added that the position of FIT is that discretionary leave should be used in a more constructive way and that he could not answer the question of whether discretionary leave was ever discussed by the parties.

The FTA

The FTA relied on its written submission and also a written one from its sister union the Fiji Teachers Union (FTU) as both these unions have members employed by the FIT.

The FTA submission is that there is an existing collective agreement and that its provisions must be respected. That the agreement provides separately for 15 days of discretionary leave and 20 days annual holidays (clause 22.2.1 and clause 22.1.1) and that clause 22.3 clearly stipulates that periods of discretionary leave and annual holiday may be continuous which shows that there are two types of leave.

The FTA submits that the action of the FIT in registering a dispute and seeking an interpretation of a clause in the collective agreement from a third party is most inappropriate. The FTA, therefore submits that the Tribunal needs to direct FIT to adhere to the collective agreement, and continue like it has been doing since 1997, to provide 15 days of discretionary leave in addition to 20 days annual leave such that each teaching staff is entitled to 35 days of total leave in a year.

Consideration

As I have indicated at the beginning of this decision, the Tribunal is bound by the terms of reference from the Permanent Secretary for Labour which is over the interpretation of Discretionary Leave Entitlements under clause 22.2 of the partie's collective agreement. 

The FIT contends that discretionary leave is given at the discretion of the employer based on the need for development of staff that needs performance improvement or those who wish to attend training to improve on their knowledge and skills. 

Clause 22.2 of the collective agreement says the following:

22.2	Annual Discretionary Leave for Teaching Staff

22.2.1	Entitlement

All Teaching Staff are entitled to three weeks (15 working days) leave in each leave year which shall be used at the discretion of the staff member and shall not be available for duty, with the following exceptions:

(a) During the period in which the staff member is required to undergo initial training (in terms of the requirements of section 20.3 above) she/he may be required to allocate up to two weeks of discretionary leave in any leave year for that purpose.

(b) Any member of the teaching staff who is identified as requiring remedial assistance to meet normal performance standards, may be required to use up to two weeks of discretionary leave in any leave year for direct professional development aimed at improvement in areas where performance inadequacies have been identified.

22.2.2	Timing

Discretionary Leave shall be used in blocks of not less than one week, unless the staff member consents otherwise, and shall be timed having regard to the operational requirements of the institute. Wherever possible discretionary leave will be combined with annual holiday leave in such a way as to provide for an unbroken period of at least four weeks.

22.2.3	Provision for Buying Back Discretionary Leave

In exceptional circumstances, and with the concurrence of the staff member concerned, the period of discretionary leave may be used for teaching provided that the staff member is not required to undertake a period of training or professional development as required under section 22.2.1 above. Where staff is so employed they will be paid an additional sum which shall be 30% of the base salary to which they are normally entitled. During the period of such employment the total salary paid to the staff member shall be at the rate of 130% of the base salary. Such payments will be made only when the staff member concerned has fully met his or her teaching obligations during the balance of the year.

The Tribunal searched through the evidence and the submission of FIT in order to grasp the reason for the need for interpretation of this particular clause. What it found was more the justification for the action it had taken and the reasons dating back to the date of the collective agreement in 1997. 

The Tribunal holds the view that it cannot be doubted that the FIT and the FTA agreed to be bound by clause 22.2 and other clauses in the Collective Agreement dated 21st December 2007. Over a period of time and with the coming in of autonomy FIT sees the application of this particular clause differently, thus the need for interpretation.

Interpretation of Clause 22.2

The Tribunal relies on the principles adopted by the Fiji Court of Appeal in Hassan Din and Finance Sector Management Staff Association – v – Westpac Banking Corporation (Civil Appeal No. 66 of 2003) where the Judges were guided by the observations of Lord Hoffman when delivering the judgment of the majority in the House of Lords in Investors Compensation Scheme Ltd –v- West Bromwich Building Society [1998] 1 All ER 98 at 14. The principles may be summarized as follows –

(!) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2) The background was famously referred to by Lord Wilberforce as the "matrix of fact", but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and in this respect only legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.

(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammar, the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax (see Manual Investment Co. Ltd. V Eagle Star Life Assurance Co. Ltd. [1997] 3 All ER 352, (1997) 2 WLR 945).

(5) The rule that words should be given their natural and ordinary meaning reflects the commonsense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require Judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Cia Naviera SA v SWalen Rederina AB, The Antaias [1984] 3 All ER 229 at 233 [1985] AC 191 at 201:

"if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense."

When adopting Lord Hoffman's approach the evidence relating to the negotiations between FTA and FIT that led to the collective agreement would be inadmissible. Similarly the evidence of Mr. Mataika cannot be relied upon since he is part of the FIT management board that discussed issues in the collective agreement and that his evidence was directed to support the reasons for the adoption of the clause on discretionary leave and FIT's current position on the matter.

What then, is the meaning that would be conveyed by clause 22.2 dealing with "Annual Discretionary Leave for Teaching Staff" to a reasonable person with the relevant background knowledge?

Such a person would be aware that the clause, in the context of the collective agreement as a whole, is intended to provide yearly leave for teaching staff when they want to take it. The syntax of this clause points to that.

Clause 22.2.1 to a reasonable person with the relevant background knowledge would mean that all teaching staffs are entitled to 15 working days leave in each year when they want to take it and for that period of discretionary leave shall not be available for duty except in the following circumstances:

(a)	if a teaching staff is employed without the required industrial experience he/she may be required to allocate up to two weeks of discretionary leave in any year for that purpose. Again the syntax shows the degree of volutariness to undergo initial training.

(b)	again the syntax shows the voluntariness to undergo remedial training.

22.2.2	In considering the meaning that would be conveyed to a reasonable person, the Tribunal considers the syntax of this clause in the following manner – the phrase "discretionary leave shall be used in blocks of not less than one week," means that when a teaching staff decides to take his discretionary leave it shall be in blocks of not less than one week and that is confirmed by the next phrase in that sentence which says " unless the staff member consents otherwise", means that the staff member has the initial and final say. The last phrase "and shall be timed having regard to the operational requirements of the Institute", means that due consideration must be taken of the operational requirements of the Institute. The last part of the sentence clearly shows that discretionary leave can be combined or taken together with annual holiday.

22.2.3	The rule that words should be given their natural and ordinary meaning applies here if one looks at the syntax of this sub-clause. To a reasonable man with the relevant background knowledge, this sub-clause means that in some instances and when a staff member who has completed his/her training or professional development agrees, he can be teaching during the period of discretionary leave and that staff member shall be paid 30% of the base salary. 

Time has changed and the Tribunal understands the position of FIT but there are ways of doing things and in employment relations you need to consult, give notice to the FTA and other unions that you need to sit down and review the practice in the collective agreement. It may be rightly out of time but it is the employees' written contract of service and it stands until amended by mutual agreement.

Accordingly the Tribunal in addition to the interpretations highlighted in bold above decides as follows:

Discretionary leave is an entitlement, and is not given at the discretion of the employer (FIT). Clause 22.2 is triggered on application by the staff member (teacher) exercising his or her discretion.

DATED at Suva this 28th day of August 2009

Sainivalati Kuruduadua
CHIEF TRIBUNAL