IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE EMPLOYMENT RELATIONS TRIBUNAL 
		
Decision  		

Title of Matter:	Peni Roqica Cere					         (Grievor)
			         	  	 	 
v
Air Terminal Services (Fiji) Ltd				      (Employer)

Section:		Section 211(1)(a) Employment Relations Promulgation 
	
Subject:	Adjudication of Employment Grievance 
	
Matter Number:	ERT Grievance  No 198  of 2017 	
Appearances: 	Mr K Tunidau, for the Grievor
Mr N Tofinga, for the Employer	
Dates of Hearing: 	27 October 2017, 30 October 2017. 	
Before:  	Mr Andrew J See, Resident Magistrate  	
Date of Decision: 	11 December 2017  	
KEYWORDS: Employment Relations Act 2007; Unjustifiably and unfairly dismissed; Employee theft at work; Prior inconsistent statements; Right to be heard.  

Background 
1.	This is a grievance that has been referred to the Tribunal from the Mediation Service in accordance with Section 194(5) of the Employment Relations Act 2007. The Grievor was terminated in his employment for wilful misconduct and claims that the process that led to his dismissal was unfair and that the outcome was not justified.

The Case of the Employer and Justification for the Dismissal 
2.	The Employer is involved in the ground handling and catering services within the Fijian airport network. The Grievor was engaged as a Ramp Equipment Driver under the terms and conditions of employment set out within the Agreement Between Air Terminal Services (Fiji) Limited and Federated Airline Staff Association (“the Master Agreement”). 

3.	Employees working in various roles such as the Grievor, were issued with company uniforms and safety work boots, consistent with the nature of the work and the need for personal protective equipment. The incident that gave rise to the Grievor’s dismissal in employment, comes about when he was apprehended on Close Circuit Television Video (CCTV) having removed a pair of safety boots from on top of another worker’s locker without permission. In video footage shown to the Tribunal, the Grievor can be seen removing the safety boots from on top of the locker of a co-worker, Mr Jiuta Sigalevu on 22 January 2017 and returning them with the assistance of another employee on 29 January 2017. The case of the Employer is that the Grievor took those boots without permission of Mr Sigalevu and had only returned them after having being alerted to the fact that a complaint had been lodged and an investigation commenced, into their whereabouts. 

The Process followed by the Employer in Dealing with the Conduct 
4.	Article 26 of the Master Agreement sets out the procedures that must be followed by the company when dealing with alleged misconduct that may lead to disciplinary action. First and foremost, the worker must understand the charges levelled against her or him. Secondly, where the alleged misconduct is regarded as serious, the worker may be stood down pending a Disciplinary Inquiry that is to be conducted by a Disciplinary Committee, consisting of an equal representation of Company and Association representatives, conducted under the stewardship of a jointly agreed Chairperson.  It is the Disciplinary Committee’s function to make a decision as to whether the allegations levelled against the worker are made out and to make a decision to be conveyed to the worker as to what the appropriate disciplinary sanction, if any, will be. 

5.	The final phase within that procedure, provides for an appeal against the Disciplinary Committee recommendation, by either the worker or the company, to an Appeal Committee. That Committee is constituted by one Company and Association representative, with a Chairperson appointed by mutual agreement of the parties. 

Findings of the Disciplinary Committee 
6.	The Disciplinary Committee formed to consider the charges levelled against the Grievor, found that he was guilty of misconduct and that as a result, he was also guilty of breaching both the general principles set out within the Company’s Code of Conduct, as well as its Ethical Values. 

7.	That Disciplinary Committee recommended in its communication dated 12 April 2017, that the Grievor be:-

•	Demoted to the position of 1st year Loader Customs Hall;
•	Not considered for promotion for a two year period; and 
•	Issued with a final warning letter.
8.	On 19 April 2017, the Employer appealed against the Disciplinary Committee decision and an Appeals Committee was constituted for that purpose. During the proceedings before this Tribunal, the Chairperson of the Appeals Committee, Mr Elvis Chandra, gave evidence in relation to the processes that he and his fellow members took, in the re-evaluation of the earlier decision.  On 21 August 2017, the Appeals Committee advised the Grievor of its decision that:-

•	The Disciplinary Inquiry committee penalty decision was too lenient and inadequate 	as the deliberate violations of this nature (pilferage) will not be tolerated; and
•	The Disciplinary Inquiry committee penalty decision will be overturned to 	Termination of your service. 

Implication of the Appeal Committee Decision
9.	The dismissal letter that was issued to the Grievor by the Employer on 29 August 2017, in effect relies on the outcomes of the Appeals Committee as the justification for the dismissal decision. Of course an employer is free to assign, what would ordinarily be its own responsibility to make such decisions, to a process such as set out within the Master Agreement. As stated in a recent decision involving the same employer, it is a most unusual process and one that seems to be fraught with problems. In any event, whichever way the dismissal decision comes about, it still must submit to the statutory interrogation of the unjustifiable and unfair dismissal requirements provided for within the Employment Relations Act 2007. 

10.	During the course of proceedings and the giving of evidence from the witnesses called by the Tribunal, the Employer and the Grievor himself, provided some exposure to weaknesses in the interview processes that were adopted by the Disciplinary Inquiry Committee. For example, the original complainant who claimed to have had his boots stolen, Mr Sigalevu, was not interviewed by that committee, albeit that the Grievor had provided a statement suggesting that he and the complainant had been involved in ‘horseplay’ and that the missing boots, was nothing more than that.  The Tribunal was also concerned with the fact that Mr Sunia Bukalidi, a person also named within one of the statements provided by Mr Sigalevu dated 2 February 2017, was also not interviewed to understand the nature of what would otherwise be no more than hearsay evidence pertaining to a similar allegation.  It was also the case, as became clear during the cross examination of Messrs Chandra and Donaldson, that the Grievor had not been shown the relevant CCTV footage pertaining to the incident. 

11.	All of these issues are important ones insofar as questions of natural justice and fairness in process are concerned. Though the role of the Tribunal should militate against any undesirable outcome, by being able to interrogate without fear or favour, all of the relevant issues, in order to ascertain whether the dismissal was either unjustifiable or unfair. 

The Case of the Grievor 
12.	The case of the Grievor is somewhat difficult to comprehend. In part, this arises out of the fact that he has in effect altered his version of events and explanation of his conduct. For example, in his statement provided to the Employer dated 31 January 2017, that is following having been apprehended on CCTV footage as having taken the safety boots in question, the Grievor stated: 

	“I started my shift at 11.00-1900. After signing on I came up to the locker room, I came in I 	saw Jiuta Sigalevu locker. I was doing horse playing, We also joked and played around lots of 	time I had his safety boots left inside my locker. Then I return it to him, Apologised for my 	horse play to him. I apologised it was unintentionally (sic)”. 

13.	On the other hand, during his Evidence in Chief, the Grievor said that he had asked permission from Mr Sigalevu could he borrow his safety boots, as his own were wet. Mr Cere, told the Tribunal that he then kept them for a few days as they were wet and that he only returned them upon understanding that Mr Sigalevu had believed they were missing. When asked by the Tribunal, as to why the Grievor had not returned the boots himself, as opposed to having another employee return them for him, he replied, words to the effect that “he was getting changed”. When asked by the Tribunal why he didn’t place the boots on top of Mr SIgalevu’s locker upon entering the change room? The Grievor replied, that the boots were underneath his clothing in his bag.  The Tribunal does not accept either of these accounts as being particularly credible responses in the circumstances. In the first place, as the CCTV footage showed on 22 January, the Grievor had retrieved the boots from the back of the locker, whilst getting changed. It simply makes no sense that he could not have placed them back on the locker in that same way. Secondly, the Tribunal finds it hard to comprehend why the Grievor could not simply take the boots out of the bag that he entered into the room with and place them on top of the locker.  The more plausible explanation seems to be, that the Grievor did not wish to be seen to be personally returning the safety boots that were known by staff to have been stolen at work. 

14.	During the giving of his evidence, the Grievor also indicated that on one previous occasion, he had also submitted to a Disciplinary Inquiry because of practices concerning the loading of cargo. 

15.	Within the Grievor’s Closing Submissions, the following key themes arise:-

(a)	That the Review Committee or its Chairperson do not have powers to impose disciplinary action;
(b)	That any dismissal decision reliant on the tainted ATS Disciplinary Inquiry Submission, would be unfair;
(c)	That the dismissal would be unfair, because the Griever was excluded from the Committee of Review proceedings in breach of his right to be heard;
(d)	That the dismissal was unfair by virtue of the agreement that had been entered  into between the Chairperson and the ATS representative  of the Committee of Review, in contravention of Article 26E of the ‘Master Agreement’ between the parties;
(e)	That the grounds of the appeal by the Employer against the decision of the Disciplinary Committee, contravened the scope of those available under the terms of Article 26 D of the Master Agreement; and 
(f)	That the burden of proof rests on the Employer to establish that the dismissal “was both substantively procedurally just and fair”.

16.	There are two central arguments that arise. The first, is that the  Agreement Between Air Terminal Services (Fiji) Limited and Federated Airline Staff Association (“the Master Agreement”) binds and is enforceable by the Grievor, by virtue of Section 164(1)(b)(1) of the Employment Relations Act 2007. In effect what is argued, is that where there is non-compliance with the various provisions contained within Article 26 to the Agreement as it relates to the Disciplinary Procedure, then any decision arising out of such non-compliance cannot be viewed as a valid one.   Certainly the Tribunal accepts the arguments of the Grievor, insofar as there are aspects of the process that have been adopted that appear unclear or inconsistent with the language within the various paragraphs of that Article. But the issue that follows at this stage, when the dismissal decision has been effected, is what is the way in which these claimed irregularities should now be addressed? 

17.	In accordance with the Grievor’s Submissions at paragraph 16, the remedy that is sought is reinstatement, reimbursement and compensation.  The Grievor has not sought, as possibly he could have done, orders from the Employment Court asking that the ‘disciplinary issue’ be remitted to another Disciplinary Committee or Committee of Review, in order that they exercise their function according to the terms of the Master Agreement.   Instead, the Grievor has elected to pursue a grievance through the Mediation Service and now to this Tribunal and by doing so, asks that a determination be made, as to whether the dismissal was justified and fair. To that end, whilst the submissions of the Grievor are noted insofar as it alleges the non-compliance by the committee members to various aspects of Article 26 and the failure to adopt more broadly principles of natural justice, that in itself does not drive the way in which a hearing and determination of the substantive issues is concerned. These proceedings have been conducted de novo and as a result, whilst the deliberative activities of the Disciplinary Committee and Committee of Review are of interest, they do not form the focal point of the analysis. That focal point can only be, whether the conduct of the Grievor ultimately gave rise to a justifiable dismissal by the Employer. 

18.	There is of course an interesting argument that ensues and that is, whether a decision to dismiss a worker in a manner inconsistent with the terms of an enforceable Industrial Agreement, can ultimately give rise to a justifiable dismissal.  As was raised by the Tribunal in the case of  Lagi v Nadi Town Council,  the failure by an employer to observe the terms of a Collective Agreement, may not necessarily render the decision unjustified.  It may be argued that it nonetheless renders the decision unlawfully made, but the remedy in such cases, unless the matter is remitted back to the decision makers to ensure compliance with those statutory steps, must otherwise be found within the nature of the remedy being sought.  The Tribunal’s role is to in effect take the place of those involved in the making of the dismissal decision and evaluate whether or not the Grievor has been unjustifiably and unfairly dismissed.  If it is the case that an individual worker seeks the enforcement of a provision of a Collective Agreement, then a different proceedings should have been instituted. Whether or not, there are other remedies that arise out of such a breach, by way of penalty for example, is perhaps also a possible consideration. 

19.	The other aspect that is equally as important out of all of this, is that which has been referred to within Dutt v Air Terminal Services (Fiji) Ltd where the Tribunal stated: 
	At some stage the parties may need to think whether or not the 	Disciplinary Committee has 	in fact a role that recommends dismissal decisions, rather than authorises them. It 	needs to be kept in mind that the employment contract is one made between the individual 	employee and the Employer and not the Disciplinary Committee. 

20.	The second argument raised by the Grievor, is founded upon  the principles of natural justice, fair hearing and a right to be heard.  Whilst in the present case, the dismissal was not undertaken summarily, the observations made within the decision of Vulaca v Land Transport Authority are nonetheless apt, where this Tribunal stated: 
The Employer seems to be relying on the case of Carpenters Fiji Ltd v Latianara[16] to support the view that there need not be any right to be heard, where it believes that it can summarily dismiss an employee. This clearly shows why employees need to be certain that their actions are justified. A summary dismissal that is not justified will therefore expose the employer to remedies under statute. One really good reason why employers should provide employees the right to be heard, is so that they do not get the decision wrong. Obviously there will be on occasions quite clear cases, where little is to be gained by hearing from the employee, but this is not one of those cases.
21.	The Tribunal acknowledges some of the criticisms that have been levelled indirectly against the Employer by the Grievor in this regard and forms the view that principles of natural justice should, where possible and practicable, feature as an essential part of any decision making process, where a significant interest is at stake.

22.	Finally, it is stated within the Grievor’s Submissions that: 

The Tribunal ought to assess whether the decision to dismiss the Grievor was one which falls outside the response of a reasonable employer. 

23.	In doing so, the Grievor makes reference to several English Authorities, that are based on a statutory prescription provided for under the then Employment Rights Act 1996(UK).  As has been alluded to by this Tribunal on previous occasions, that legislative scheme and statutory direction provided by the language of Section 98(4) (a) of that Act needs to be seen and confined to that statute.  The concept of ‘reasonableness’ for example, is different to that of whether a decision is justified.  As Lord Hailsham LC said in re W (an infant), 

	 “Not every reasonable exercise of judgment is right, and not every mistaken exercise of  
        judgment is unreasonable.”

24.	The distinction between the concept of ‘reasonableness’ as opposed to an unjustifiable dismissal, can easily be ascertained when one considers the meaning of the word justification. The origin of the word is sourced from the Latin justifacare, meaning to vindicate or to make just. Put another way, if a dismissal was not justified, it would be said to have not been done justly toward someone, or that it was not just. That it could not be vindicated.  As such, the concepts of ‘unjustifiably’ and ‘unfairly’ dismissed as they appear within Section 230(2) of the Employment Relations Act 2007, come about and have quite a distinctive jurisprudence. 

What is An Unjustifiable Dismissal 
25.	In Kumar v Nunuku Auberge Resort Fiji, this Tribunal stated: 
As a starting point, at least in the context of ‘unjustifiable dismissal’, the question needs to be asked, having regard to the Statement of Reasons provided, whether a termination based on those reasons was justified. The question post Central Manufacturing v Kant, where a new regulatory regime is installed, must be, Can the dismissal be justified? The initial question to ask is not how the dismissal takes place, or what is relied on as part of that process, but whether the reasons for giving rise to the decision to terminate are justifiable. The concept of whether or not a termination or dismissal at work is justified or not, has been enshrined in international labour law for many years.  The Termination of Employment Convention, 1982 (No. 158) adopted at the 68th International Labour Convention session in Geneva, sets out within Part II, Division A, a framework for assessing whether or not a dismissal is justified. Article 4 for example, provides that “The employment of a worker shall not be terminated unless there is a valid reason for such termination concerned with the capacity of conduct of the worker or based on the operational requirements of the undertaking, establishment or service. Articles 5 and 6 thereafter provides additional illustrations of circumstances that would not constitute a valid reason for termination.  These include union membership, filing a complaint or participating in proceedings against an employer, discriminatory grounds based on attribute, absence due to maternity leave or temporary absence from work because of illness or injury. 

Northrop J in Selvachandran v Peteron Plastics, provided the following clarification when a comparable question was being asked as to whether a termination decision was a valid one. In that case, his Honour stated:

Subsection 170DE(1) refers to "a valid reason, or valid reasons", but the Act does not give a meaning to those phrases or the adjective “valid". A reference to dictionaries shows that the word "valid" has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning
given is " Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value." In the Macquarie Dictionary the relevant meaning is "sound, just, or well founded; a valid reason."

In its context in subsection 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee's
capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and
obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, 5 May 1995, unreported, when Considering the construction and application of section 170DC.

…the concept of what constitutes a justifiable decision within the meaning of Section 230(2) of the Promulgation, could well canvas such concepts as to whether the dismissal decision was sound, defensible or well founded; not capricious, fanciful, spiteful or prejudiced. 

26.	The Tribunal is of the belief that the Grievor did take the safety boots that were on top of Mr Sigalevu’s locker, without his permission. Whilst Mr Sigalevu did give evidence in proceedings that was on occasions somewhat difficult to understand, he nonetheless did not resile from the three statements he had provided to the Employer, all of which made clear that he did not give the Grievor permission to take his boots. Whilst Mr Sigalevu appeared somewhat equivocal in his recollection of events, some of that can be attributed to his shy demeanour and nervousness initially in the witness box. The Tribunal remains of the view that Mr Sigalevu was adamant that the boots went missing without his permission and that he had been approached by the Grievor in relation to the investigation, in what he describes as follows:-

..this is the exact explanation Ben Roqica gave me on the phone:-“Oi drau bula, cava caka jiko…your safety boot….took it…because one guy from where I live (Navakai) is working but doesn’t have any safety boot. I took it and gave your boot to him. Just tell Kai (Manager) that we always do hiding each others stuffs, horse play and make my story to Kai (Manager) that you took and hide my safety boot too one day. Oi drau, I already put in my report that I took your boot too one day. I called you because I was advise to do so by one of our staff and that is what I called you so we can make this story and to apologise to you”. 

27.	There was no real challenge made by the Grievor to this part of Mr Sigalevu’s statement. The Tribunal is satisfied having regard to the way in which Mr Sigalevu gave his evidence in the witness box and his general demeanour in answering questions put to him, that this was an honest recollection of a conversation that he had with the Grievor. 

The Question of Unfairness
28.	As mentioned above, a critical aspect to the complaint of the Grievor, focuses on the failure of the Employer to properly undertake a disciplinary process that was fair and thorough.  While the Tribunal has made note of the shortcomings that have existed, such omissions do not in themselves give rise to a dismissal being regarded as either unjustifiable or unfair. As said in  Mikaele Vulaca v Land Transport Authority 

The fact that the Grievor was not given an opportunity to provide any account to the employer, is simply the best argument for why employers should provide employees with natural justice and a right to be heard before a decision of this nature is taken.  That is, unless you get your facts right in the first place, you simply may make a decision, that cannot be justified. 

29.	In relation to the question of whether or not the dismissal is an ‘unfair’ one, in Josifini Lagi v Nadi Town Council this Tribunal stated:

The question of whether the dismissal was fair in my mind is quite clear. Even if there has been some non -compliance with the prevailing expectations of the Union Association, that does not necessarily render the dismissal unfair from a statutory point of view.  ………………………………………… The issue is whether in carrying out the dismissal, the Employer acted in a manner that was harsh, aggressive, humiliating, degrading, embarrassing, or in a manner that otherwise causes humiliation, bad repute and injury to the feelings of the worker.

30.	The Tribunal has not been made aware of any such issues operating in the course of the Grievor’s disciplinary process.  Any claim that the dismissal was unfair, within the context of Yanuca Island, must also fail. 

Conclusions and Other Issues 
31.	In conclusion, the Tribunal in some ways sympathises with the Grievor for his conduct. One small aberration can have significant consequences, though they are not insurmountable. The Grievor is 35 years of age. He was given several opportunities to truthfully account for his conduct, yet the Tribunal sensed that he was being less than truthful in his account of what had transpired.  The fact that the Grievor changed his position and provided later inconsistent statements, is all of his own doing. In Moti Chandra & Company Ltd v Credit Corporation (Fiji) Ltd, the Court of Appeal recognised the importance of evaluating competing accounts of events, having regard to a witness’s demeanour and linguistic ability when giving subsequent oral evidence. In this regard, the Tribunal was satisfied that the Grievor had taken the safety boots without permission and that it was likely he did so for the reasons set out within the statement provided by Mr Sigalevu dated 2 February 2017.

32.	Whilst the processes of inquiry that were applied by the Disciplinary Committee was flawed, the end result nonetheless appears to be one that can be justified. This was a case of employee theft and it rightfully gives rise to a dismissal in employment. The grievance application must fail on that basis. 

Decision 
It is the decision of this Tribunal that:-

(i)	The grievance of Mr Peni Roqica Cere is dismissed.

(ii)	The Employer is at liberty to make an application for costs within 28 days. 

 

Mr Andrew J See 
Resident Magistrate