THE Employment Relations Court has overturned a tribunal ruling that ordered the reinstatement of a former senior air traffic controller terminated over an unlawful strike in 2019.
Delivering the judgment on October 9, Justice Senileba Waqainabete-Levaci upheld Fiji Airports Ltd’s (FAL) decision to dismiss Michael Jermaine Tevita Cakau.
The matter arose in March 2019 when several air traffic controllers failed to report for duty while demanding pay increases. The disruption forced FAL to issue a Notice to Airmen (NOTAM), suspend training flights, and recall overseas staff.
On March 20, 2019, the Minister of Employment declared the strike unlawful, and the Arbitration Court subsequently issued interim orders directing workers to return to work.
Despite these directives, Mr Cakau remained absent. Following internal disciplinary proceedings where he pleaded guilty to charges including unlawful absenteeism and wilful disobedience of lawful orders, he was terminated in May 2019.
Mr Cakau challenged his dismissal at the Employment Relations Tribunal, which ruled in October 2021 that his termination was unlawful, ordering his reinstatement and $25,000 in compensation.
FAL appealed on five grounds.
Justice Waqainabete-Levaci upheld all grounds, ruling that the tribunal erred in law and fact by, among other things, misapplying the tests for unjustifiable and unfair dismissal, incorrectly comparing Mr Cakau’s dismissal to sanctions meted out to other staff and finding the company had relied on aggravating factors that were not supported by any evidence. The judge found that the tribunal had not identified any law that had been breached and incorrectly concluded that Mr Cakau’s dismissal was unlawful.
Finding that valid grounds for summary dismissal were established, the court set aside the tribunal’s decision, quashed the reinstatement order, and awarded $2000 in costs to FAL.
