Club Supreme v Kemala [2006] SBHC 1; HCSI-CC 502 of 2005 (1 February 2006)

HIGH COURT SOLOMON ISLANDS

Civil Case No. 502 of 2005

CLUB SUPREME

V

DICKSON KEMALA

(BROWN J)

Date of Hearing: 1 February 2006
Date of Judgment: 1 February 2006

A Radclyffe for the Appellant
E Garo for the Respondent

Trade Disputes Panel Act - s.7 powers on unfair dismissal - on appeal to the High Court - finding by Panel on the evidence - discretion to make reasonable Award of compensation

This appeal is of short compass. The respondent who had worked for the Supreme Club, (Mr Patrick Leong) for some 15 years as a carpenter drove a truck of his employer with timbers belonging to Mr Leong to the residence of another of Leong’s employees, Mr Colin Sango where the timber were left on a Saturday. Mr Leong accused Dickson Kemala, the respondent in this appeal of having stolen the timbers.

Mr Leong says Dickson made no answer when accused of the theft. Mr. Radcliffe quite reasonably points to that silence alleged by Mr. Leong as acquiescence by Dickson to the allegation. This was Mr. Leong’s evidence to the Panel. Later in the hearing before the Panel, (which had been convened to deal with Dickson Kemala’s claim of unfair dismissal), Dickson said he had been asked by Colin Sango to take the timbers to Colin’s residence at Vara Creek. When confronted by Patrick Leong at that time, Dickson told Patrick Leong, Colin had said he had permission of Feni (Patrick’s contractor) to take the timbers.

Patrick confirmed they were his timbers which were “good ones, and were not supposed to be taken”

Dickson’s evidence-“Patrick told me to take Feni to that place to see the timbers ourselves again, and that they were not waste timbers.” When at Vara Creek, Patrick “started accusing us of stealing the timbers.”

The evidence then is in conflict over the material point relied upon by Patrick Leong. In this evidence before the tribunal, recounted above, there was in fact explanation given by Dickson. The tribunal accepted this explanation it seems for they recounted it in their reasons.

There is clearly an issue over whether Feni had given Colin permission to take timbers.

In his evidence before the Panel he said he had told Colin he could take waste timbers and Colin acted upon it. It was a matter of degree surely whether the timber was waste timber or good timber. Patrick made that differentiation after the taking had occurred. Feni does not say he chose the timbers. Dickson did not choose the timbers “for Colin loaded the truck”.

It was open to the Panel to find that Dickson’s dismissal was unfair in these circumstances. Dickson drove the truck but satisfied himself Colin had authority. That authority was ostensible authority (“Feni normally asked me if he was to take any timber “........) (Partick Leon’s evidence.)

Feni (“timbers belonged to Patrick but I was given the authority to look after the timbers. I authorised Colin to get the waste timbers)”.

Dickson was entitled to rely on that ostensible authority since it is impliedly recognised by Patrick Leong in his cross examinations by the Panel.

I find no error in the proceedings, sufficient to interfere with the Panel’s finding on the facts. The first appeal is dismissed.

The amount awarded is ½ that available to the Panel to order. The man was employed 15 years; 6 months pay after 15 years seems too little in these circumstances, although there does not appear to be any power under the various Acts for me to vary the Panel’s award of compensation.

In the circumstances when I read the record of the proceedings, I must say it would seem Mr Patrick Leong acted precipitously, in sacking this employee. Perhaps his pride forbade him leniency, but in the light of these proceedings Mr Dickson Kemala seems to have suffered a harsh penalty for acting to help a fellow employee with ostensible right to rubbish timber.

The appeal against the award of compensation is also dismissed.

Costs in the cause.

THE COURT