Earthmovers Solomons Ltd v Solomon Islands National Union of Workers [1998] SBHC 98; HCSI-CC 1 of 1998 (22 June 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 1 of 1998

EARTHMOVERS SOLOMONS LIMITED & OTRS

-v-

SOLOMON ISLANDS NATIONAL UNION OF WORKERS

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
Civil Appeal Case No. 1 of 1998

Hearing: 11th June, 1998
Judgment: 22nd June, 1998

J. Moti for the Appellants
C. Ashley for the Respondent

PALMER J.: This is an appeal lodged under section 13 of the Trade Disputes Act 1981 against the Award of the Trade Disputes Panel (the “Panel”) made on 4 February, 1998 and delivered on 20 March, 1998.

The Award appealed against read as follows:

“(i) That the Employer to formally negotiate with the Union on its proposed Recognition and Collective Agreements.

(ii) That the dismissed workers to be re-instated with effect from the date of termination.

(iii) The Employer party to pay to all its employees represented by the Union an increase of 10% across the board on wages, allowances and incentives from 1st January, 1997.”

The Appellant is the Employer in this case, and the Respondent represents the interests of the sacked employees (the “Employees”) (about 200 or so workers involved).

Chronology of Events:

The chronology of events is not in dispute. It was referred to in the Panel’s Ruling but not in sequential order and so I will set them out in detail as deposed to in the affidavit of Tony Wong filed on 9th October, 1997 in Civil Case No. 244 of 1997; and affidavit of Tony Kagovai filed on 29th October, 1997 also in Civil Case No. 244 of 1997. It is vital to a proper understanding of what transpired in this case.

On or about 15th June, 1995, the Appellant entered into a Collective Agreement with the Union. That agreement was to remain effective for a minimum period of 12 months from 1st January, 1995 (a copy of that Agreement is annexed to the said affidavit of Tony Wong and marked Exhibit “TW1”). That Agreement expired on 31st December, 1995 without being renewed.

On 15th May, 1996 and 31st May, 1996, logs of claims were forwarded to the Appellants as a basis for review of the Collective Agreement after its expiry (see paragraph 3 of the said affidavit of Tony Kagovai and exhibits “TK1 (a)” and “TK1(b)”).

Numerous correspondences were then exchanged to get the parties to the negotiating table but with no avail (see Exhibits “TK2” and “TK3” in the said affidavit of Tony Kagovai).

Out of frustration the Union issued a 28 days strike notice on 27th September, 1996 (see Exhibit “TK3”- note Exhibit “TK3” is a bundle of documents). This was the first strike notice issued. One day before the expiry of that strike notice on 23rd October, 1996, another letter was issued raising matters of interest to the parties (see Exhibit “TK3”). On the same date, the Appellant replied acknowledging the letter of the Union but advising that they were not available to meet with them until they had obtained advice from their legal Counsel.

Little progress was made until in August of 1997, almost a year later, another letter was issued which contained a “log of claims for the year 1997” (a copy of this is annexed to the affidavit of Tony Wong filed 9th October, 1997 and marked Exhibit “TW3”). The Appellants claimed the letter was received on the same date, (3rd September, 1997) they received a notice of an intention to strike from the Union. A copy of the strike notice is annexed to the same affidavit of Tony Wong filed 9th October, 1997 and marked Exhibit “TW2”. That notice is dated 2nd September, 1997. Paragraph 1 reads:

“Under the provision of the Essensal (sic) services (sic) act (sic), we hereby formally submit Twenty Eight (28) days strike notice effective as from today’s date, and lapse as from 29th September, 1997.”

What provision under the Essential Services Act is relied on is not mentioned.

On 30th September, 1997 the Appellant issued a memorandum advising all its Camp Managers and Sawmill Managers inter alia, to write down the names of those who went on strike and those who did not(a copy of that memorandum is annexed to the affidavit of Tony Kagovai filed 29th November, 1997 and marked “TK3”).

On 29th September, 1997, the Employees went on strike. On 9th October, 1997, the Appellant issued termination notices in respect of those Employees. On the same date the Appellant filed an application by Originating Summons seeking declarations on a number of rights under the Essential Services Act, the Unfair Dismissal Act 1982, and the Collective Agreements between the Parties. That case has not been dealt with, but parties now agree that the same issues raised therein would also have been canvassed in this appeal.

On 31st October, 1997, a trade dispute was referred to the Panel by the Minister for Commerce, Employment and Tourism and referral notices subsequently served on the Parties.

The grounds of appeal:

The grounds of appeal for convenience are divided into four clusters of questions. These are: (1) the Constitutional Question, (2) the Jurisdictional Question, (3) Application of contractual and statutory interpretation principles, and (4) the proper procedure to be followed. I will deal with the second ground first.

GROUND 2 - THE JURISDICTIONAL QUESTION:

The jurisdictional question arises from the findings and consequential conclusions arrived at by the Panel which the Appellant submits had no basis in law. At page 6 and top of page 7, the Panel made the following findings:

“It was not in dispute that the employer was given sufficient notice to take proper cause of action. On the basis of this assessment the Panel finds that the strike notice and strike action taken was in furtherance of a trade dispute.”

The Panel then refers to the definition of a trade dispute in the Schedule and continues:

“This then brings us to the status of the employees. The workers who went on strike in pursuit of a trade dispute and were terminated were unlawfully terminated.”

In his submissions, learned Counsel, Mr. Moti for the Appellants, respectfully posed the question, that if there was a trade dispute and the strike notice and action taken were in furtherance of a trade dispute, so what if it was? What relation does that have with respect to the conclusion that thereby the termination was unlawful? Mr. Moti submitted there was no basis in law to support that conclusion or finding by the Panel. The error in legal reasoning which the Panel committed he submitted, was in making the award to reinstate based on their erroneous finding that the termination was unlawful. In other words what learned Counsel seeks to suggest was that the termination by the Appellant was not unlawful and thereby the Panel had no basis in law to make an award to reinstate. It was not unlawful because section 10 of the Trade Disputes Act had not been enlivened. But even if the terminations were unlawful, the jurisdiction to make an award to reinstate is found only under the Unfair Dismissal Act 1982 (section 6(3)) and not under the Trade Disputes Act. Claims under the Unfair Dismissal Act 1982 were never considered by the Panel and therefore the award to reinstate was premature and made without jurisdiction.

Mr. Ashley for the Respondents argue to the contrary that the Panel had jurisdiction to consider the issue of dismissal as a trade dispute and to make the award it did in reinstating the sacked workers.

Was there a trade dispute and a strike in furtherance of that trade dispute?

The answers to these questions must be made in the affirmative. Learned Counsel for the Appellants concedes that there was a trade dispute between the parties. The evidence adduced before this Court makes this plain, that a trade dispute existed over inter alia, recognition, wages increase, allowance and incentives and the drawing up of a new collective agreement (see letter from the Union dated 25th August, 1997, - Exhibit “TW3” in the affidavit of Tony Wong filed on 29th November, 1997).

It is also clear on the evidence before this Court that the strike action taken on 29th September, 1997 was in furtherance of that trade dispute. This is conceded by the Appellants.

Was the question of termination part of the trade dispute before the Panel?

This is an important question in this appeal. In the Schedule to the Trade Disputes Act, a “trade dispute” is defined as including:

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

It is clear from this definition that the issue of termination in this case, falls squarely within that definition, and capable of being included as part of the trade dispute before the Panel.

In the facts of this case, one of the matters which the Panel considered as part of the trade dispute before it was the question of termination. It is not in dispute that the strike and subsequent termination of the striking workers were directly connected with the existence of a trade dispute between the parties. In order to understand the reasons for the strike for instance, one must look at the prior relations, dealings and matters in dispute between them. The strike action and subsequent mass terminations thus were directly linked to the trade dispute between the parties. They occurred as a result of the existence of the trade dispute between the parties. They were consequential events. The strike action and mass dismissals therefore should not be treated in isolation. It follows that the subsequent dismissals of the workers following the strike action should not be treated as separate from the trade dispute referred to the Panel. They are part and parcel of that trade dispute and had become embroiled with the trade dispute matters in existence between the parties.

But even if it could be argued otherwise, I am satisfied on the evidence before this Court that the issue of termination of those striking workers was one of the matters specifically mentioned in the letter of referral from the Minister of Commerce, Employment and Tourism dated 30th October, 1997. Item (5) of that referral letter mentioned the termination of the workers by the Appellant. It thus formed one of the items specifically referred to the Panel as a trade dispute and which the Panel was required to inquire into. This the Panel correctly did. At page 1 of the Findings of the Panel, it included as one of the terms of the referral it was required to enquire into, “The employment status of the employees who were terminated from employment on 9th October, 1997 consequent upon taking strike action on 29th September, 1997”.

I am satisfied therefore that the issue of termination of striking workers was one of the matters which the Panel was required to inquire into rightly as a trade dispute.

The significance of the question of termination being part of the trade dispute before the Panel.

The significance of the question of termination as being part and parcel or one of the items of the trade dispute before the Panel to inquire into, is that it disposes of the question of jurisdiction straight-away. This is important to appreciate. It simply means that the Panel had jurisdiction to inquire into the question of termination of those dismissed workers as part of the trade dispute referred to it. It follows that the Panel had the jurisdiction to make the order that it did in its award to reinstate. So the question asked by learned Counsel for the Appellants in his submissions, that if there was a trade dispute and the strike action was in furtherance of that trade dispute, so what, can be answered in the following manner. That because there was a trade dispute, and the strike action which followed was in furtherance of that trade dispute, and therefore was closely and directly linked to that trade dispute, it was rightly considered as part of that trade dispute, if not, one of the matters which flowed from that trade dispute, apart from the fact that it had been specifically included as one of the matters which the Panel was required to inquire into, it follows that the Panel not only had jurisdiction to deal with it, but also to include in its award an order to reinstate.

In the case of Solomon Taiyo Ltd v S.I. National Union of Workers (No.1) 1985/1986 SILR 27, the Panel had decided to treat as a trade dispute or part of the trade dispute before it, the dismissal of seventeen workers involved in leading a strike over ration allowance. Discussions between the Company and the Union had broken down over a dispute on ration allowance. Since 1976, the Company had been paying $40.00 per month in lieu of rations. The Company however wished to end that practice. The matter went on appeal primarily on the ground that the Panel had erred in law in ordering the reinstatement of the workers without a formal complaint lodged by the dismissed workers under the Unfair Dismissal Act, 1982. In other words, it was sought to be argued before this Court that the Panel had erred in considering or including the issue of termination of those seventeen workers as a trade dispute, rather than as unfair dismissal cases under the Unfair Dismissal Act, 1982, and that because no claims had been lodged under the said Act, that the Panel had no jurisdiction to order a reinstatement of the workers. His Lordship Wood CJ, whilst recognising the force of the argument, declined to allow the appeal and ruled instead, that the Panel was entitled (had jurisdiction) to deal with that issue as a trade dispute. At paragraph 3 of page 29, held that the issues before the Panel fell within the definition of the Trade Disputes Act.

“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.”

He continued at the last paragraph, same page,:

“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.”

The above case is clear authority for the view that the Panel had jurisdiction to deal with issues of termination as a trade dispute in this case. See also the case of Solomon Taiyo Ltd v S.I. National Union of Workers (No.2) (1985/1986) SILR 235, where fifteen workers were dismissed for drinking during working hours. The Panel in its ruling had found that the dismissals were unfair and recommended that the workers be re-engaged. On appeal one of the matters raised in argument was that the matter should have been treated separately as an unfair dismissal claim and not as a trade dispute. At page 241, paragraphs (2) - (4), Ward CJ states:

“It does appear from that the Panel was, in effect, dealing with the matter as a trade dispute and a claim for unfair dismissal at the same time. Clearly section 6(2) does not allow this. However, in order to resolve the trade dispute, in the circumstances of this case, the Panel would have needed to consider the dismissals and appear to have felt it was sensible and more economical, therefore, to consider the matter as a whole. A decision on the latter would resolve the former as was stated in the findings

The purpose of both Acts is to provide a more flexible and informal procedure of inquiring into disputes of this nature than would be provided in the normal courts of law. The Trade Disputes Panel was set up with this in mind. Similarly the flexibility given to the Panel in relation to procedure aims to achieve the same purpose.

Whilst they are, of course, bound by the rules, the Panel must be allowed considerable discretion as to the best manner of’ inquiring into a dispute especially where the parties are not represented by lawyers. This court will not lightly interfere with such decision. In this case they should, strictly, have heard the trade dispute before the claim for unfair dismissal but the procedure they adopted was manifestly sensible, clearly stated and I do not accept (despite the magnanimous concern for the respondent shown in ground 3) that either party was prejudiced in any way.”

The jurisdiction to re-instate.

It being clear that the Panel had jurisdiction to inquire into the question of termination as a trade dispute, the decision to make an award to reinstate all dismissed workers, was nothing more than a consequential order, well within its jurisdiction to make. The two cases cited above are clear authorities on this point. The Panel must be given room to move in and deal with the disputes as they arise and in a manner that is effective and efficient. In the facts of this case, that was exactly what the Panel did. Having so ruled, not only have all the matters in the trade dispute been finally determined, but the question whether the sacked workers need have recourse to the Unfair Dismissal Act has also been taken care of and no longer arises.

I will deal with the question of lawfulness of termination and the application of the Unfair Dismissal Act in detail later in this judgment.

The appeal ground on the question of jurisdiction therefore must be denied.

APPEAL GROUND No. 3 - THE APPLICATION OF CONTRACTUAL AND STATUTORY INTERPRETATIONS.

Under this ground, learned Counsel for the Appellants, sought basically to highlight the contractual rights which his clients retain and were entitled in law to exercise.

Section 10 of the Trade Disputes Act.

Reference was made by learned Counsel to the application of section 10 of the Trade Disputes Act but with respect its relevance is fairly limited.

I do not think it is in much dispute, that section 10 of the Trade Disputes Act 1981 does not apply to the actions of the Appellant in dismissing the workers on 9th October, 1997. On the said date, no referral had been made to the Panel. A referral was made only on or about 30th October, 1997. Section 10 therefore would only have applied as from date notice of referral was served on the parties. The dismissals which occurred on 9th October, 1997 could not have been in breach of that provision and so not unlawful the Trade Disputes Act.

If it was suggested that this was the conclusion reached by the Panel in its findings, that the workers were unlawfully terminated, then that would be clearly wrong.

Were the workers unlawfully terminated?

If the dismissal of the workers was not unlawful under the Trade Disputes Act, was it unlawful in some other way? That part of the Panel’s ruling which learned Counsel takes issue against reads:

“This then brings us to the status of the employees. The workers who went on strike in pursuit of a trade dispute and were terminated were unlawfully terminated.”

In his submissions on this point, Mr. Moti presented two scenarios before the Court. The first assumed that the Collective Agreement signed on 15th June, 1995 was still operative and applied to the circumstances of their case. Bearing in mind that the Collective Agreement does not give any right to strike, such an action would entitle the Appellant to elect to affirm the strike action and put up with it, or to elect to terminate it. In the facts of this case, Mr. Moti points out his Client had elected to terminate. So why all the fuss, he submits, there was nothing unlawful about taking that line of action.

The second scenario presented assumed that the Collective Agreement did not apply. Mr. Moti pointed out that this scenario was what had been urged upon the Panel to accept. In this case, he submits, ordinary principles of contract law as modified by statute would apply. He relied on a number of cases which make the position clear regarding strike action as amounting to a repudiatory breach of the contract and which subsequently entitle the employer in turn to accept that repudiatory breach and terminate the contract with immediate effect (see Chappell and Others v. The Times Newspapers Ltd and Others [1975] 2 All ER 233 at 239 and 240; Morgan v. Fry and Others [1968] 3 All ER 452; and Simmons v. Hoover Ltd [1977] 1 All ER 775, at 781 and 782.)

In this jurisdiction, the law as expounded in those cases, in particular Simmons v Hoover Ltd had been applied in the case of S.I. National Union of Workers v Honiara Town Council (1988/89) SILR 43. Also in a more recent case, Solomon Islands National Provident Fund Board v Solomon Islands National Union of Workers Civil Cases 437 & 438 of 1993, judgment delivered on 9th August, 1994, his Lordship Muria CJ applied the same principles of law. At page 12, second paragraph, his Lordship stated:

“The position as clearly stated in the cases cited is that the act of going on strike constitutes a fundamental breach by an employee of his contract of employment. It is on the employer to decide whether to accept the breach as an end to the contract or to allow the contract to continue despite the breach. See Simmons v Hoover (supra) and SINUW v HTC (supra). As such an employer is entitled to dismiss all the employees who take part in a strike even without notice ....”

His Lordship continued at paragraph (4):

“There can be no doubt that by taking part in a strike the employees commit a breach of contract. So that, in this case, when the members of the Union went on strike on 26 November 1993 they were in breach of their contracts with the employer and the employer was entitled, if it decided to do so (which it did), to dismiss all the employees who took part in the strike.”

Applying the ordinary principles of contract law to this case, there can be no doubt that the act of going on strike amounted to a repudiatory breach of their contracts of employment and entitled the Employer to terminate their employment contracts. The finding therefore by the Panel that the termination of the workers was unlawful was erroneous.

From this premise, Mr. Moti submits that the only course open to the Panel was to have the issue of termination of the workers determined under the Unfair Dismissal Act, 1982, as an unfair dismissal complaint and not as a trade dispute. That pre-supposes however, that the error committed by the Panel was one which went to jurisdiction and rendered the whole award a nullity.

In a way I have already indirectly dealt with this issue under the jurisdictional question, because in dealing with that issue, I had already pointed out that whether the terminations were lawful or not, makes little difference to the jurisdiction of the Panel to inquire into the terminations of the striking workers as a trade dispute and to determine whether they should be reinstated or not. It was not necessary in the circumstances of this case for the matter to be dealt with under the Unfair Dismissal Act, where it was being dealt with as part of the trade dispute before the Panel.

Was the error committed one that went to jurisdiction?

In my respectful view the error committed was merely one within jurisdiction. The Panel made the wrong conclusion that the workers had been terminated unlawfully, when in law they had. There was no breach of section 10 of the Trade Disputes Act, nor the Collective Agreement, or general principles of contract law, or any other statute law. The Employer therefore was entitled in law to terminate for a repudiatory breach of their employment contract.

But whether they were entitled in law to terminate the workers for going on strike, the Panel was still entitled to consider whether those terminations were fair in the circumstances. Most definitely, under the Unfair Dismissal Act, 1982, the Panel would have been obliged to consider that question.

The crucial point to note is that whilst the conclusion reached was wrong regarding the question whether the terminations were lawful or not, it does not necessarily follow that the award made by the Panel subsequently was without basis in law or wrong. The Panel was clearly entitled to make the order in its award to reinstate. This respectfully is where learned Counsel’s submissions went astray. He makes the assumption, that the Panel reached the wrong award because of the erroneous finding that the workers had been unlawfully terminated. Had the Panel made the right finding that the terminations were lawful it would not have made the order to reinstate. Unfortunately that is not necessarily so and does not give the complete picture. The Panel was entitled to consider the question whether those terminations were fair or not in the circumstances as a trade dispute, in spite of the fact that no claim for unfair dismissal under the Unfair Dismissal Act had been lodged (see Solomon Taiyo Limited v Solomon Islands National Union of Workers (No.1) 1985/1986 SILR 27 and Solomon Taiyo Limited v Solomon Islands National Union of Workers (No.2) 1985/1986 SILR 235).

Were the dismissals fair or not?

This leads on to the next crucial question, whether the Panel did consider the question of fairness of those dismissals. If the Panel did consider that question, then that is the end of the matter. If not, Mr. Moti suggests under ground (4) of the Notice of Appeal that this Court should now address that question and substitute its decision. The more realistic approach would be for this Court to quash the order for reinstatement and direct that the matter be proceeded with in the normal way under the Unfair Dismissal Act 1982. It is important to appreciate the distinction between lawfulness of termination on one hand and fairness of dismissal on the other hand. Whilst I accept the submission of the Appellants that they were entitled to terminate lawfully and did do so here, whether it was justifiable in the circumstances is a separate issue altogether. In order to assess that question, the Panel would have to look at the reasons for the strike and whether any notice was given. It would also have to consider whether the Employer acted reasonably in treating that reason as sufficient.

Did the Panel do that? The answer to this question in my respectful view must be answered in the affirmative. It is clear from the judgment of the Panel that it was of the opinion that the dismissal of the workers was unjustified in the circumstances, though it did not expressly say so. At page 6, the Panel made the following pertinent findings:

“The Panel finds on the basis of the evidence that upon expiration of the 1995 Collective Agreement, the employer in principle continued to recognise the Union whilst on the other hand stubbornly refused to formalise this unwritten recognition by entering into a written recognition agreement. Evidence also showed that the Union had made several attempts to formalise this recognition agreement but to no avail. It is important to focus the Union’s case within the ambit of the 1995 Collective Agreement so as to justify its claim of recognition. Firstly, the operation and duration clause catered for a minimum period of 12 months but that this period would be revised at the end of the 12 months period. This implies that the Collective Agreement was in principle still operational in that there was no maximum period. As such, the employer did not honour its obligation to review this minimum period. Also, the company failed to notify the union in early 1996 that it had withdrawn its recognition until October 1996. In the framework of the memorandum and recognition of agreement as provided for in the paragraphs quoted herein the Panel was of the opinion that the Agreements could not be limited to the period between 1st January to 30th December, 1995. It was the minimum period that was subject to review. The Union’s financial memberships had not fallen below 50% as provided for under paragraph 4 of the Recognition Agreement and that it had not breached paragraph 3 otherwise the employer would have withdrawn its recognition. Now, even if it were established otherwise, being that the agreements expired in December 1995, the union’s persistent claim of having majority membership of the employees and culmination in the strike notice in 1996 would oblige a responsible employer to enter into negotiations knowing that its workers opted for union representation. However, it adopted a “wait and see” attitude until the September strike notice expired and proceeded to terminate the workers. Whether the notice was issued under the Essential Services Act or not was irrelevant for the purposes of issuance of notice to avoid a lightning strike. It was not in dispute that the employer was given sufficient notice to take proper cause of action. On the basis of this assessment the Panel finds that the strike notice and strike action taken was in furtherance of a trade dispute.”

It is my respectful view, that despite asking the right questions and coming to the wrong conclusion, that does not detract from the award made that the Appellants should reinstate its dismissed employees. What I think Panel meant to say was that the workers had been unfairly dismissed and not unlawfully terminated. Its findings are consistent with that conclusion. But despite and in spite of that erroneous finding, the Panel made, in my respectful view, a proper and valid order requiring the Employer to reinstate. This I find to be entirely consistent with the substantive findings of the Panel, without expressly saying so, that the workers had been dismissed unfairly. But even if it might be argued otherwise, I am satisfied on appeal, that the dismissal, though not unlawful, was unfair in the circumstances.

The chronology of events as set out in the affidavit of Tony Kagovai filed 29th November, 1997 and conceded to a large extent in the affidavit of Tony Wong filed 9th October, 1997, if not, never expressly denied, showed clearly what the reasons for the strike were. They related to matters which the Appellants cannot deny were not insignificant. They formed the “bread and butter” of industrial relations between the parties. It is clear on the evidence and the Panel accepted this, that the Employer simply “back pedaled” when the Union, on behalf of its members, sought genuinely to enter into meaningful dialogue with the Employer to address those vital matters. It is also borne out in evidence that the Union had been seeking to negotiate with the Employer since early 1996, but to little avail.

Further, the Union gave more than adequate notice (some 28 days) of an intention to withdraw labour to press for the matters set out in their log of claims. Whilst on the subject of notice, it appears to have been erroneously suggested in the ruling of the Panel that the issue of a 28 days strike notice by the Union meant that because the strike was lawful, any subsequent terminations were unlawful. With respect, that is not so. All that the notice did was to forewarn the Appellants of their intention to withdraw labour, but without terminating their employment (as is obvious from the chronology of events leading up to the strike), and to give opportunity to the Employer to take such reasonable action as would be necessary in the circumstances to avert an immediate termination of the employment of the Employees. The strike in this case therefore was lawful, because adequate notice had been given. It does not necessarily follow though, that the Employer in this case cannot thereby terminate the employment contract of the striking workers for going on strike. Up until the moment the Employer elects to terminate, the striking workers remained its employees.

The Employer’s attitude and approach too was not conducive to the amicable settlement and meaningful dialogue which the Union was seeking to achieve on the log of claims. This was noted by the Panel, and described as a “wait and see” attitude, and refusing to take appropriate action. The Employer, fully cognisant of the reasons for the strike, and given adequate notice, could have easily referred the matter to the Trade Disputes Panel for determination either before the strike action was taken or when it commenced. That would have solved the strike crisis; section 10 of the Trade Disputes Act would have been enlivened, and without having to effect any terminations, the striking workers would have been obliged to return to work. It did not do that. Instead it opted to exercise its right to terminate. The Panel found this to be “unlawful”, when in actual fact what I think was meant was that the terminations were unjustifiable in the circumstances, or unfair. I also find the actions of the Employer unreasonable in the circumstances and see no reason to interfere with the findings of the Panel.

Ground 3 thereby must also be denied.

Ground 4 - the proper procedure to be followed.

In a way, ground 4 has already been addressed. It simply relates to the proper procedure to be adopted in this appeal. It makes specific reference to Rule 11 of The Trade Dispute Panel Rules 1981 [L. N. No. 37 of 1981]. That Rule provides that Order 60 of the High Court (Civil Procedure) Rules 1964 shall apply to appeals under section 13 of the Trade Dispute Act. Order 60 provides in turn that such appeals shall be by way of rehearing. It was urged upon this Court to either remit this case back to the Panel for hearing under the Unfair Dismissal Act or for this Court in the exercise of its appellate powers to address the issue of unfair dismissal itself.

One of the cases relied on in support of the view that the matter should be referred back to the Panel to address under the Unfair Dismissal Act, 1982, was the case of Solomon Islands National Provident Fund Board v Solomon Islands National Union of Workers, Civil Cases Nos. 437 & 438 of 1993, judgment delivered on 9th August, 1994. In that case, negotiations were held between the parties on 25th November, 1993, over a wage increase claim by the Union for 12.5%, compared to the Board’s offer of 8%. Later that same day, the Union decided to take strike action without notice. On the morning of 26th November, 1993, the Board was taken by surprise to learn that its employees had gone on strike. At about 11.50 am the same morning, the Board decided to terminate the employment contract of all those who had gone on strike and set out to implement this straight-away. This was successfully completed before 2.50 pm, when a trade dispute was then referred to the Panel. In his judgment, his Lordship Muria CJ found that the employment contracts of the striking workers had been legally terminated for breach of contract. His Lordship made the observation that the question whether the employer acted reasonably in dismissing the employees was a matter for the Panel to consider if a complaint is taken against dismissal.

It should be pointed out in distinction that the question which his Lordship was required to address was whether the striking employees had breached their contracts of employment by going on strike. He was not required to address directly any orders for reinstatement or whether the issue of termination was part of the trade dispute before the Panel, because it seems that after the mass dismissals the workers were re-engaged under new terms. By the time the issue of unfair dismissal was dealt with by the Panel, it became an academic exercise because all, if not most workers, had been re-engaged. In this case, the same approach could have been taken, but for the approach taken by the Panel in treating the issue of termination as a trade dispute and issuing orders for reinstatement in its award, thereby making it unnecessary for the workers to have recourse to the Unfair Dismissal Act. On the facts, I am satisfied Panel had actually addressed that issue, although it did not expressly say so, and that therefore the order to reinstate was one which it was entitled to make; never mind the fact that they had been lawfully terminated.

The Application of the Unfair Dismissal Act 1982.

I have already dealt with the application of this Act in this judgment, if not directly, then indirectly. The two case authorities in this jurisdiction are the Solomon Taiyo Limited v S.I. National Union of Workers (No.1) (1985/1986) SILR 27 and Solomon Taiyo Limited v S.I. National Union of Workers (No.2) (1985/1986) SILR 235, which clearly establish that where issues of dismissal are before the Panel as a trade dispute, it is entitled to consider them as such although no formal claim had been made under the Unfair Dismissal Act.

The submissions of learned Counsel therefore that the Panel does not have jurisdiction to order a reinstatement without a formal claim being made under the Unfair Dismissal Act, 1982 cannot be sustained in the light of very clear authority.

Ground 4 therefore must also be dismissed.

Ground 1 - the Constitutional Question.

This ground respectively can be shortly disposed of. It was never raised before the Panel when the matter came before it. If it had been a genuine concern, it would surely have been raised as a preliminary point for the Panel to determine as a question of law. It is questionable whether the same question would have been raised had the decision gone in favour of the Company. Respectfully, I find it to be akin to a red herring - an attempt at diverting attention from the real issues before this Court.

But since the matter had been raised before me in some detail by learned Counsel, I will address it for completeness sake.

Section 10(9) of the Constitution provides:

“Except with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public.”

The important part in this section is the requirement that a decision be announced in public unless the parties consent to it being announced otherwise. In the case referred to by learned Counsel, Nano and Another v Riringi; Katovai v Lumukana (1984) SILR 9, Daly CJ made some pertinent remarks regarding the application of section 10(9) of the Constitution. At page 18, second paragraph, his Lordship states:

“If the decision had been announced in public after due notice then there would be no difficulty; the three months would start to run from that date. If consent to postal notification of the decision had been given it would seem to me that the decision was only given when it is “announced”. That is when the parties are made aware of the decision. This flows from the fact that section 10(9) of the Constitution regards as crucial not the making of the decision ... but the announcement of it. Accordingly what must be looked for in deciding what is the date of a decision of a court in Solomon Islands is the date when that decision is announced. Where a decision is in writing and forwarded to the parties it cannot be said to be announced until it reaches the party; or is deemed to have reached him as is the case where a party is served by post or other means and the provisions relating to such service operate to fix the times of service. It is also “announced” when a party is given due notice of an oral announcement but does not attend.”

(Emphasis added)

The application of section 10(9) of the Constitution to section 8 of the Trade Disputes Act 1981 and rule 8 of the Trade Dispute Rules 1981, is simply this.

Section 8 and rule 8 of the Act and Rules prescribe the mode of announcement of the decision. The decision is deemed announced when a signed copy of the award is entered in a register kept for that purpose and forwarded to each party.

Mr. Moti seeks to suggest that the requirements of section 8 and rule 8 are inconsistent with section 10(9) of the Constitution, in that firstly they take away the Constitutional requirement to have a decision announced in public and secondly deprive the parties to waive their right to the announcement of the decision in public. With respect, I disagree. All that section 8 and rule 8 have done is to prescribe in detail the manner of announcement in public. Section 8 and rule 8 must be read with rule 9 of the Trade Dispute Panel Rules, 1981 for completeness. Rule 9 requires the awards to be entered into a register kept for this purpose and to be made available to the public for inspection if desired. What these provisions have done is instead of giving notice in the usual way and announcing the decision in public, the awards of the Panel are announced when they are entered in the register under rule 9 of the Trade Dispute Panel Rules, signed by the Chairman under rule 8 of the Rules and sent to the parties by the Secretary to the Panel. The element of public announcement is catered for by keeping a register under rules which is available to the public for inspection on payment of a fee. When these provisions are taken into account, I fail to see how they can be regarded as offending against section 10(9) of the Constitution.

Ground 1 therefore and the final ground of appeal must also be dismissed.

THE ORDERS OF THE COURT:

1. DISMISS APPEAL.

2. UPHOLD ORDERS OF THE PANEL AS CONTAINED IN THE AWARD DELIVERED ON MARCH 20, 1998.

3. COSTS OF THIS APPEAL TO BE BORNE BY THE APPELLANTS.

THE COURT.