Chan Ho Cheon v Rok and SI Total Event Ltd [1998] SBHC 78; HCSI-CC 2 of 1998 (6 April 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 2 of 1998

CHAN HO CHEON

-v-

ROK AND SI TOTAL EVENT LIMITED

In the High Court of the Solomon Islands
(Muria, C.J)

Civil Case No.2 of 1998
Hearing: 2 April 1998
Ruling: 6 April 1998

A. Nori for Plaintiff
A. Radclyffe for Defendant

RULING

MURIAC.J: This is an application by the defendant for an order to strike out the originating summons filed by the plaintiff who has sought declaratory orders arising out of his termination from employment by way of redundancy. The ground relied upon by the defendant is that the High Court has no jurisdiction under section 8(1) of the Unfair Dismissal Act,1982 to deal with redundancy matters arising under Part II of the Employment Act,1981 and that the Trade Disputes Panel has the sole jurisdiction to deal with such matters at first instance.

The brief background to this case are that the defendant, Chang Ho Cheon, was employed as a manager of the defendant until 29 March 1997 at a salary of $3,000.00 per fortnight. A one month notice of termination was served on the defendant on the 19 March 1997. In his letter containing the notice of termination, the managing director stated the reasons for terminating the defendant’s employment. Among other things he said:

“I have based part of my decision on the fact that the company must carry out some serious cost cutting measures to minimize cost. Therefore, your post would be abolished and job delegated to supervisors. This is inline with the governments (Labour division) localization policy.

Also our relationship here in the company is not at all good. There seems to be some conflict of interest and your lack of self motivation in the daily running of the company clearly shows that you are not capable of the job.

I believe that it is better for you to carry out whatever business you wish to venture into and I wish you all the best.”

The defendant was paid the amount of $8,844.43 which the defendant understood it to be for his pay in lieu of notice plus his last pay for the month of March and not for his redundancy payment.

In support of his client’s case, Mr. Radclyffe argued that section 8(1) of the Unfair Dismissal Act 1982 confers power only on the Trade Disputes Panel to deal with the question of redundancy payment and that the High Court does not possess any such power under the Act. In other words, the power conferred by the statute is exclusive to the Trade Disputes Panel unless it can be shown otherwise. In this case, Counsel argued, there is nothing to show that the High Court has been conferred with such power. Asked by the Court if Counsel had any authority to support his contention, Mr. Radclyffe simply said that he relied on the interpretation to be placed on the words used in section 8(1) of the Act.

In opposing the application, Mr. Nori submitted that section 8 of the Unfair Dismissal Act is not exclusive and as such it does not preclude the High Court from determining the question as to the plaintiff’s right to redundancy payment in an employment case, such as the present one. He argued that Parliament did not intend, when enacting section 8, to exclude the plaintiff’s right to invoke the jurisdiction of the High Court in a matter such as that brought by the plaintiff in this case. Consequently the plaintiff has chosen to come to this Court instead of going to the Trade Disputes Panel.

The issue here is a short one. It is this: whether section 8(1) of the Unfair Dismissal Act 1982 exclude the High Court from determining the question as to the right of the plaintiff to a redundancy payment arising under Part II of the Employment Act 1981. The answer to that question undoubtedly must depend on the proper construction to be given to that provision which I set out hereunder:

“8. (1) Any question arising under Part II of the Employment Act 1981 as to the right of any person to a redundancy payment, or as to the amount of the payment, shall be referred to the Trade Disputes Panel by a complaint under this section and determined by the panel.”

The starting point in this process must be the words used in the provision themselves. The intention of Parliament is expressed in those words which must be given their natural and ordinary meaning in the context they are used unless it can be shown that the words as used do not have a natural and ordinary meaning or that the words are umbiguous. In those situations the Court can resort to one of the “rules of construction” which the courts have developed to give meanings to words used by the draftsman and which have failed to adequately convey the natural and ordinary meaning of the words consistent with the context in which they are used. See In Re Application By The Minister For Western Provincial Affairs [1983] S.I.L.R.141.

Mr. Radclyffe’s argument is basically that section 8(1) of the Act says that complaints about redundancy payments shall be referred to the Trade I Disputes Panel. I have no doubt that the words which prompted counsel to make that argument are “shall be referred to” the Trade Disputes Panel. Those words are clear and unequivocal. They are enabling words. They enable a complainant to refer to the Panel complaints about redundancy payments. Can it be said that those words exclude the High Court from hearing such complaint? In my judgment no such exclusion can be read into those words. Further the whole provision itself, properly construed, cannot be regarded as an ouster provision but rather as an enabling provision. If it is the intention of Parliament to confer exclusive jurisdiction on the Panel and to exclude the jurisdiction of the High Court I have no doubt whatsoever that such necessary intendment could have been manifested by clear words. Access to this Court ought not to be restricted unless the law clearly says so and the extension to which such restriction applies is also spelled out.

It is true to say that the scheme of the two legislations relied on by Mr. Radclyffe is to have matters concerning employment referred to the Panel in the first place. As the procedure applied before the Panel is less rigorous than that applied in the High Court in matters brought before it, one can see the wisdom of the Legislature in preferring such matters to be dealt with by the Panel where there is less procedural strain on the parties to resolve their disputes. However, it thus not necessarily follow that the power of the High Court to deal with matters of employment is excluded simply because the law enables such matters to be brought before the Panel. The jurisdiction of this Court under section 77(1) of the Constitution is clear. It provides as follows:

“77(1) There shall be a High Court for Solomon Islands which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction and powers as may be conferred on it by this Constitution or by Parliament”

Thus the power of the High Court to hear cases such as the present one under its unlimited original jurisdiction is preserved. What Parliament did was simply to create another adjudicating authority, the Trade Disputes Panel, to concurrently exercise that power which is generally vested in the High Court. See Kenilorea -v- Attorney General (1984) S.I.L.R. 179. There can be no question of the High Court’s jurisdiction being excluded under section 8(1) of the Unfair Dismissal Act, 1982.

Apart from the advantage of a less strict procedural requirement, there is also the availability of a right appeal to the High Court where a case of this nature is first brought before the Panel. A party who chooses to proceed before the High Court at first instance loses that advantage. But that is a matter of choice and where a party so chooses, this Court will hear him. See Peter Fa’aleua -v- Provincial Secretary, Western Province, Civil Case No. 129 of 1996 (Judgment given on 2 December 1997). However, where a case falling within the jurisdiction of the Panel has been brought before the Panel, it would be in the parties’ interest to have the matter dealt with and concluded by the Panel. The right of appeal to this Court is thus preserved and which can be exercised by the aggrieved party. See The Queen -v- Trade Disputes Panel and Earthmovers (SI) Limited, Civil Case No. 287 of 1997 (Judgment given on 22 December 1997).

Having said all that, the answer to the question raised in this application should have now been made clear. Section 8(1) of the Unfair Dismissal Act, 1982 does not exclude the High Court’s jurisdiction to deal with redundancy matters arising under Part II of the Employment Act 1981.

The defendant’s application is refused.

(Sir John Muria)
CHIEF JUSTICE