Home | Databases | WorldLII | Search | Feedback Fiji Employment Tribunal

Filipo v Fiji National University [2012] FJET 46; ERT Grieveance 182.2010 (24 January 2012)

IN THE EMPLOYMENT
TRIBUNAL AT SUVA

ERT Grievance No. 182 of 2010

BETWEEN:

JOHN FILIPO
GRIEVOR

AND:

FIJI NATIONAL UNIVERSITY
EMPLOYER

Appearances:
Mr. D. Nair for the Griever
Mr. V. Kapadia for the Employer

RULING ON PRELIMINARY ISSUE

The Preliminary Issue

1] The preliminary issue was raised by the Employer in its reply submissions filed with the Tribunal on 18th February 2011. The essence of the submission is that the Grievor has breached Section 109, sub – section 4 of the Employment Relations Promulgation 2007 (ERP) which stipulates the following:

"Where an employment contract includes an internal appeal system it must not provide for appeal to the Tribunal or Employment Court, and the internal appeal system must first be exhausted before any grievance is referred for Mediation Services."

2] The Agreement on terms and conditions of employment for salaried non- teaching staff of the then Fiji Institute of Technology provides in Clause 23 the Disciplinary Procedures for Staff. This Agreement applies to the staff of Fiji National University and this is the agreement that is applicable in the case of John Filipo.

3] John Filipo was suspended on 25th June 2009 and charged on 30th June 2009 for unauthorized removal of scrap metal from the Fiji National University (FNU) Compound. On 19th April 2010 he was heard by the FNU Disciplinary Committee and it ruled that there was sufficient evidence against the worker and that summary dismissal was the proper penalty. John Filipo filed his appeal on 3rd June 2010 and further detailed submissions on 13th July 2010. The Disciplinary Committee reviewed the decision and on 20th July 2010 ruled that there was no fresh evidence presented to dispel the finding that John Filipo had collected funds from the sale of scrap metal done without the authorization of the Fiji Institute of Technology.

4] The Employer submits that pursuant to the Collective Agreement clause 23.10.4 if a staff member does not accept the decision from the review undertaken by the Disciplinary Committee, the matter has to be referred by the staff member to the Independent Appeals Committee which comprises of an Independent Chairman mutually agreed upon by the Grievor and the Employer. The other members of the Appeals Committee are nominated by the Employer, the Staff and the Human Resource Manager of the Employer.

Analysis

5] John Filipe did not follow the procedure outlined in Clause 4 and instead referred his grievance to the Mediation Services of the Ministry of Labour. The grievance was not resolved in mediation and was referred to the Tribunal for adjudication. The Tribunal does not have records of the proceedings in the mediation as those are confidential to the parties and in that connection it will assume that the parties did not discuss the preliminary issue.

6] Section 194 (1) of the ERP deals with procedures for mediation services and provides the following:

"Where mediation services are provided, the Mediator who provides the services may decide what services are appropriate to the particular case in accordance with any prescribed procedures."

7] Section 194 (5) provides a window for a Mediator to refer unresolved grievance or dispute to the Tribunal for adjudication and reference is done via Form ER 4. For this grievance the Form ER 4 provides the following:]

"The grievance is of unfair termination of the worker John Meli Filipo by the Fiji National University from their FIT, Suva Campus from 25th June 2009. The worker claims that the dismissal of his appeal by the FNU Disciplinary Committee was wrong, unfair and unjustified and that it resulted in the unfair termination of his employment. He seeks to be reinstated without loss of pay and/or benefits and his exoneration, with the removal of all related adverse reports from his personal file."

8] The fact that the Mediator has referred this grievance to the Tribunal shows that the grievance needs to be adjudicated on with the terms of the reference in Clause 7 above which is a reproduction of the Form ER 4 which amongst other claims stipulate that the dismissal of his appeal was wrong, unfair and unjustified and that it resulted in the unfair termination of his employment.

9] This reference to the dismissal of appeal re-focuses the Tribunal's attention to the Disciplinary Procedures for Staff as provided for in the Agreement on Terms and Conditions of Employment for Salaried Non- Teaching Staff of the Fiji Institute of Technology. In his written submission John Filipo had made oral and written presentation to the Disciplinary Committee and that was for the purpose of reviewing the decision of the Disciplinary Committee under clause 23.10.3. The Disciplinary Committee could not review its decision as no new evidence had been produced for John Filipo. Furthermore, the Disciplinary Committee had found John Filipo guilty of a serious misconduct coupled with that was his position of responsibility as the supervisor. The Tribunal will not disturb the finding of the Disciplinary Committee in both instances as that will be the subject of further scrutiny during the hearing of the substantive matter in this grievance.

Decision

10] John Filipo did not fully comply with the Internal Appeal's Procedure and the Tribunal did not see that as being deliberate on his part, but rather he acted without proper advice from either the union or the employer;

11] The grievance has been referred to the Tribunal for adjudication from the Mediation Services, with the terms of reference in Form ER 4;

12] The Tribunal will hear the parties on the substantive matter; and

13] There are no orders as to costs.

DATED at Suva this 24th day of January, 2012

Sainivalati Kuruduadua
Chief Tribunal