Solomon Taiyo Ltd v SI National Union of Workers (No 1) [1985] SBHC 18; [1985-1986] SILR 27 (22 March 1985)

1985-1986 SILR 27

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 11 of 185

SOLOMON TAIYO LTD

v

SOLOMON ISLANDS NATIONAL UNION OF WORKERS (NO.1)

High Court of Solomon Islands
(Wood C.J.)
Civil Case No. 11 of 1985

18 March 1985 at Honiara
Judgment 22 March 1985

Trade Dispute - leaders of strike dismissed - whether dismissed employees may be reinstated as part of trade dispute resolution or whether they must individually file claims under Unfair Dismissal Act 1982 s.6(1)

Facts:

The appellant appealed against an award of the Trade Disputes Panel on the ground that the Panel erred in law in ordering the reinstatement of seventeen dismissed employees as part of the resolution of a trade dispute without the individual employees making formal claims of unfair dismissal under s.6(1) of the Unfair Dismissal Act 1982. The appellant argued that under s.6(2) of the Act the seventeen unfair dismissal claims could not be dealt with by the Panel until the underlying trade dispute was first disposed of and the employees filed formal claims for unfair dismissal. The appellant’s workers had gone on strike over a trade dispute and seventeen workers were dismissed for leading the strike.

Held:

The Panel was correct in treating the dismissal of the employees as part of a “trade dispute” as defined in the Trade Disputes Act 1981 and not as “unfair dismissals” in terms of the Unfair Dismissal Act 1982 since the dismissals were connected with the trade dispute and the strike that followed. The purpose of s.6(2) is to ensure that before the Panel deals with individual complaints of unfair dismissal, the underlying trade dispute is dealt with first. In this case the dismissed employees were dealt with under the Trade Disputes Act 1981 so they had no need of recourse to the Unfair Dismissal Act 1982.

Accordingly, the appeal was dismissed.

No cases considered

Andrew Nori for the Appellant
Kenneth Brown for the Respondent

Wood CJ: This is an appeal against the award of the Trade Disputes Panel given on December 3, 1984 brought under s.13 of the Trade Disputes Act 1981 which provides for appeal to the High Court on any question of law arising from any decision of, or arising in any inquiry before, the Trade Disputes Panel.

There were four grounds of appeal but at the hearing Mr Nori withdrew three of them and only proceeded on one ground which was as follows:-

That the Panel erred in law in ordering the reinstatement of the seventeen dismissed employees by the Appellant Company as part of a package claim lodged by the Respondent without any formal claim by the employees in accordance with the Unfair Dismissal Act, section 6(1)”.

It is not in issue between the parties that there was a trade dispute in terms of the Trade Disputes Act 1981. The appellant company wished to end a practice established since 1976 of paying the workers $40 per month in lieu of rations. There were meetings between management and the company which broke down and the workers went on strike on September 26, 1984 but returned to work the following day when 17 of the workers were dismissed for leading the strike.

In its award the Panel found that the cash in lieu of rations should be paid at the request of a worker until negotiations produced agreement otherwise or by further reference to the Panel. The Panel then dealt with the question of the dismissal of the 17 workers. It is quite clear that it did so with s.6(1) and (2) of the Unfair Dismissal Act 1982 in mind. This section states the following -

“(1) An employee (“the complainant”) may present a complaint to the Trade Disputes Panel against his employer that he has been unfairly dismissed by the employer.

(2) In the case of an employee dismissed in connection with a trade dispute that is referred to the panel, no complaint by the employee under this section may be considered by the panel while the dispute stands referred to them.”

The Panel said at page 3 of its findings:-

“The Panel has treated this matter as a trade dispute not 17 unfair dismissal cases or one or two representative actions thereof. The Panel points out this is an unusual course taken to meet the circumstances of this case. As a general rule such matters should come before the Panel as unfair dismissal cases, either singly or in representative form. The Panel decided to hear this matter as a trade dispute in view of the fact it arose from a trade dispute over a ration allowance followed by a strike as a result of which workers were dismissed and in view of the number of workers actually dismissed.”

The basis of the ground of appeal as I understand Mr Nori is that the claims for unfair dismissal by the seventeen men could not be dealt with by the Panel until the trade dispute had first been disposed of and the men’s claims processed in terms of s.6(2) of the Unfair Dismissal Act 1982. I think Mr Nori conceded that the most he could hope for in this appeal would be an order quashing the order for reinstatement of the seventeen workers by the Panel with an order that the matter be proceeded with in the normal way by the dismissed men under the Unfair Dismissal Act 1982. If I were to do so Mr Brown has pointed out that only two of the men have taken such action and that the other fifteen are now time-barred in terms of s.6(3) of the Unfair Dismissal Act 1982.

I will now consider what effect s.6 of the Unfair Dismissal Act 1982 has on the findings of the Panel delivered on December 3, 1984. It is clear from the wording of the section that no complaint for unfair dismissal by an employee can be heard by the Panel while a trade dispute is before it in cases where the employee has been dismissed as a result of such trade dispute. However the Panel exists and acts under the Trade Disputes Act 1981 and under that act a “trade dispute” is defined as including “a dispute between employees and employers, or between groups of employees, which is connected with one or more of the following matters:-

(a) terms and conditions of employment or the physical conditions in which employees are required to work;

(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more employees.”

The trade dispute before the Panel clearly fell within paragraphs (a) and (b) quoted above and in terms of the Trade Disputes Act 1981. Paragraph (a) covers the dispute over cash in lieu of rations and paragraph (b) covers the dismissal of seventeen men. The Panel dealt with both matters jointly as a “trade dispute” as indeed they were and not as “unfair dismissals” in terms of the Unfair Dismissal Act 1982.

In spite of the apparently clear terms of s.6(2) of the Unfair Dismissal Act 1982 the Panel in my judgment quite correctly acted within its jurisdiction to deal with the matter before it as a trade dispute and to come to the decision it came to on the facts before it. It seems to me that the intention of the legislature in passing the 1982 Act was to broaden the remedies available to the employee and increase the jurisdiction of the Panel rather than otherwise. The purpose of s.6(2) of the Act is to ensure that before the Panel deals with individual complaints from employees alleging that they have been unfairly dismissed the trade dispute which was the whole cause of the problem must first be dealt with. In this case the Panel had dealt with the trade dispute brought before it by the respondent, not complaints from individual employees, and in consequence of its findings the dismissed employees have had no need to take recourse to s.6 of the Unfair Dismissal Act 1982 as their case had been adequately dealt with already under the Trade Disputes Act 1981.

I would accordingly dismiss this appeal with costs.