IN THE EMPLOYMENT RELATIONS
TRIBUNAL AT SUVA

ER Grievance No. 46 of 2011

BETWEEN:

KITIONE TAWAKE
GRIEVOR

AND:

FIJI SUGAR CORPORATION
EMPLOYER

Appearances:
Ms. Priya Chandra for the Grievor
Mr. Devanesh Sharma for the Employer

DETERMINATION OF THE TRIBUNAL

1.0	Reference from the Mediation Unit

1.1 The grievor Kitione Tawake was summarily dismissed by the Fiji Sugar Corporation, Penang Mill at Rakiraki on 4th August, 2009 for allegedly tampering with overtime attendance records. His Union refused to represent him and on 20th August, 2010 he took his case to the Ministry of Labour which referred it to the Mediation Unit.

1.2	The mediation session held on 30 December, 2010 did not resolve Mr.Tawake's claim and subsequently it was referred to the Tribunal for adjudication with the following terms of reference:

"The grievor claims that he was unfairly dismissed from work at Rarawai Mill, Ba on 4 August 2009 and therefore he is seeking reinstatement with no loss of pay or benefits."

The claim was referred to the Tribunal with the accompanying Form 4 on 22nd February, 2011

2.0	The Evidence

2.1 In its written closing submission the employer stressed that Mr. Tawake was terminated when the employer found him guilty of gross misconduct after an investigation was conducted into allegations that he had falsified time records in order to claim overtime pay. The termination was by summary dismissal pursuant to Section 33 of the Employment Relations Promulgation 2007.

2.2	At the hearing, the Employer called 4 witnesses who explained what happened relating to the incident. Mr. Dass in his evidence stated that he has been with the employer for the past 5 years and that he knows Mr. Tawake. On Sunday 21 June, 2009 he was given instructions by the person in charge of the shift, Production Superintendent, Vinod Prasad to pick up Kitione Tawake and that he went with the driver and shift chemist to pick him up from Korowaqa where he was staying at about 1:45 pm. Mr. Dass added that Kitione Tawake started work that day at around 2:00 pm. The request for overtime form was filled on Monday 22 June, 2009 and the procedure is for the Foreman or Senior Tradesman to approve it before the Supervisor signs.

2.3	Vinod Prasad is the Production Superintendent at the Rarawai Mill and he confirmed that he asked for Kitione Tawake to be brought in for the brushing of Pot No. 5. Vinod Prasad further told the Tribunal that Kitione Tawake shift was from 2:00 pm to 6:00 pm. and that his requisition for overtime was taken to the Chief Engineer who sent the form back to him for verification. That was how Kitione Tawake was found out; otherwise he would have been paid.

2.4	Ajay is a Post Graduate of the University of the South Pacific and he agreed that he led the investigation into Kitione Tawake's action of falsifying records when he put in the claim for the wrong hours. That was a serious misconduct and that in the process of investigation; various people were interviewed including Kitione Tawake who was interviewed in the presence of his Union President. Ajay continuing on his evidence stated that he recommended to his superiors that Kitione Tawake be suspended for one month. Under cross examination, Ajay confirmed that the investigation was conducted in a fair manner and that Kitione Tawake was given a fair opportunity to respond to the allegations made by the employer.

2.5 Bineshwar Narayan is the Human Resources Officer at the FSC and confirmed to the Tribunal that the employer has a policy which defines different breaches and that falsifying a time sheet is a breach under the policy. He added that after an investigation was carried out in this matter, Kitone Tawake was found guilty of the breach in policy. Bineshwar Narayan in his evidence also confirmed that Kitione Tawake was given ample opportunities to defend himself and to mitigate. In closing he further added that Kitione Tawake was previously warned for misconduct on 3 different occasions and that under the HR policy, falsifying a time sheet warrants dismissal.

2.6 Kitione Tawake in evidence stated that he worked at the Penang Mill as a Plumber since April 1997 and his working hours were from 7:00 am to 5:00 pm on Monday to Friday and when required he would work overtime in the weekends. He was employed on a written contract of service and he could clearly recall working on that Sunday, 21 June, 2009 but could not remember the time he started on that Sunday although he was sure that he finished at 6:00 pm.

2.7 As is the practice at the Mill, Kitione Tawake filled in his overtime form the next day which was a Monday and he told the Tribunal that since he was rushing, as the time would close at 10:00 am that morning he filled in "11:00 am". Kitione Tawake further told the Tribunal that Vinod Prasad the Production Superintendent found out the time was wrong and it was corrected on the same day when he filled in a new form.

2.8 Subsequently, there was an investigation in the matter and Kitione Tawake stated that after the investigation he was unfairly terminated when the employer alleged that falsifying time records was tantamount to gross misconduct. Kitione Tawake further alleged that he was not given ample opportunities to respond to the allegations against him. He maintains that the error was rectified the same day and he was not paid for what he termed "unjustly hours". He concluded his evidence in chief by highlighting to the Tribunal that during his 13 years of service, he had not received any form of warning from his employer.

2.9 Under cross examination Kitione Tawake was asked whether he took his overtime form direct to the Chief Engineer so that he could be paid for unjust hours. He avoided that question but on re-examination, he reiterated that he was not paid for unjust hours.

3.0	The Issues

3.1 The main issue here is whether Kitione Tawake did falsify the time records. If he did then the employer's HR Policies and Guidelines would kick in together with the application of section 33 of the Employment Relations Promulgation 2007 (ERP). The HR Policies and Guidelines classify "falsifying time records or other entitlement related documents", as intolerable and serious breaches and in most circumstances would lead to dismissal. Under the ERP section 33 it is gross misconduct and would result in summary dismissal.

4.0	Analysis

4.1 From the evidence, there is Exhibit 1 which is an extract of the form requesting for overtime and "11:00 am" is clearly written there instead of "2:00 pm" the legal and legitimate starting time for Kitione Tawake.

4.2 Similarly, Exhibit 2 is the interview record of Kitione Tawake held on 6th July, 2009 in the presence of the Union President one Mr. Saiyad Hussein. In that interview Kitione Tawake admitted that he only worked from 2.00 pm to 6.00 pm.

4.3 From the evidence the Tribunal finds that Kitione Tawake has been found guilty of a serious breach of HR Polices and Guidelines after an investigation and an interview where he was represented by the Union President and where he was allowed to mitigate. Consequently the Tribunal finds that summary dismissal was justified and in accordance with Section 33 (1) (a) of the ERP.

4.4 The Tribunal does not want to discuss the issue of this application being out of time as it has a valid reference dated 30th December, 2010 from the Mediation Unit

5.0	Decision

5.1	The Tribunal determination is the following:

 The claim for unfair dismissal by Kitione Tawake cannot be established and the application is therefore dismissed.

DATED at Suva this 17th day of June, 2013

Sainivalati Kuruduadua
Chief Tribunal