Polancos v Goodwill Industries Ltd; Muslim v Goodwill Industries Ltd [2007] SBHC 47; HCSI-CC 096 & 097 of 2003 (30 March 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 096 of 2003
Civil Case No: 097 of 2003

JOVEN MARQUEZ POLANCOS

-v-

GOODWILL INDUSTRIES LIMITED

ZURADIN MUSLIM

-v-

GOODWILL INDUSTRIES LIMITED

(Mwanesalua, J.)

Hearing: 11 May 2005
Judgment: 30 March 2007

Mr. R Ziza for Joven Marques Polancos
M.r P Watts for Zuradin Muslim
No appearance by the Defendant

JUDGMENT

Mwanesalua, J:

1. I heard Civil Case No. 096 of 2003 and Civil Case No. 097 of 2003 together according to a court order. The Plaintiff in civil case No. 096 of 2003 is Joven Marques Polancos(Polancos), while the Plaintiff in Civil Case No. 097 of 2003 is Zuradin Muslim(Muslim).

2. Polancos is a citizen of the Republic of Philippines. He entered Solomon Islands on 11 February 1995 as an Immigrant and non-Indigenous worker. He then worked for the Defendant under an employment contract (the First Contract). He held the post of Maintenance Department Manager and was posted at the Defendant’s Logging Camp at Arosi, on Makira, Makira/Ulawa Province.

3. The Defendant suspended its logging operation at Arosi in December 2000, because of the fighting between members of the Malaita Eagle Force, certain members of the Solomon Islands Police Force and the Solomon Islands Prison Service on the one side, and the members of the Isatabu Freedom Movement on the other side, on Guadalcanal Island, where the Defendant’s Head Office was situated. Polancos lived at Arosi for the whole 2001 to look after the Defendant’s machines without receiving his monthly salaries and allowances.

4. This first contract was terminated on 26 March 2001 when he signed a new employment contract ("the Second Contract"[1]) with the Defendant. He was required by the General Manager of the Defendant to sign this second contract. It was for a period of 2 years with a salary of $3,000.00 per month plus 50 cents per cubic meter of logs exported. However, the Defendant again terminated this contract on 10 February 2003. He disagreed with the way he was treated by the Defendant.

5. He therefore filed his writ and statement of claim against the Defendant on 14 May 2003. He claims outstanding salaries, allowances and entitlements due to him under the first contract. His total claim was $111,144.00. The Defendant filed Defence on 11 June 2003 denying owing this amount or any other monies to Polancos. A reply was filed by Polancos on 4 July 2003. Polancos then amended his statement of claim on 17 February 2004 under a consent order. This consent order was endorsed by the court on 3 February 2004.

6. Under this Amended Statement of Claim, Polancos claims $118,733.80 for outstanding salaries, allowances and entitlements under the First Contract; $33,000.00 under the Second Contract and $28,485.00 for expenses incurred whilst awaiting trial of his action. His total claim amounted to $180,218.80.

7. Muslim is a citizen of the Republic of Indonesia. He was an Immigrant and a non-indigenous worker as well. He entered Solomon Islands on 1 March 1998, and was employed by the Defendant as a Chief Mechanic at its Logging Camp at Bia on Makira, Makira/Ulawa Province under an employment contract (the first contract). His salary under this contract was USD700.00 per month. This contract was terminated on 26 March 2002, when the General Manager of the Defendant asked him to sign a new contract with the Defendant ("the Second Contract"[2]). This second contract was for two years with a monthly salary of $2,000.00, and where applicable, an entitlement to a commission of $0.30 per m³; bonus; overtime; and a holiday upon completion of 12 months service. However, this contract was also terminated by the Defendant on 4 February 2003. He too was unhappy about the way he was treated by the Defendant.

8. He thus filed his writ and statement of claim against the Defendant on 14 May 2003, He filed Amended statements of claim on 19 September and 21 November of 2003 respectively. They were both struck out by the court on 3 December 2003 in absence of court leave to amend and file Amended Statements of Claim. He further filed Amended Statements of Claim on 12 December 2003 and 29 January 2004. These too were filed without leave of the Court. A consent order to file Amended Statement of Claim was only filed and endorsed by the court on 18 February 2004. It follows that Muslim will only proceed on his original statement of claim filed on 14 May 2003 against the Defendant.

9. Both of these actions came before the court on 9 August 2004, following applications by Polancos and Muslim for summary judgment and motion for consolidation of the actions. The court refused both applications and struck out the summons and the motion respectively.

10. Instead, the court ordered (the Court Order) that: the trial of the actions be by way of affidavits; the Defendant file and serve Defences on both actions on which it seeks to rely on within 14 days; the Plaintiffs file and serve any material on which they seek to rely on (apart from affidavits and other material already filed), within 14 days of the filing of Defences; the Plaintiffs and the Defendant approach the Registrar of the High Court to list both cases for joint trial at the expiration of 28 days from the date of the filing of the Defences; and liberty for any party to apply to the court for an explanation of these orders if need be.

11. On 14 May 2005, Mrs. Tongarutu, submitted that her client, the Defendant, would not file any Amended Defence, but would merely rely upon the original Defence filed on 11 June 2003. Mr. Ziza submitted that his client, Polancos, would not file further affidavit, but would rely upon his client’s Amended Statement of claim filed on 17 February 2004; his client’s affidavits filed on 22 May and 31 October of 2003 and the affidavit of the Commissioner of Labour filed on 31 October 2003. And finally, Mr. Watts submitted that his client, Muslim, would file no further affidavit, but would only rely upon his client’s affidavits filed prior to 9 August 2004. These would be the affidavits filed on 22 May, 21 November and 19 December of 2003 respectively.

12. These actions were set down for joint trial to 11 May 2005. On this date, both Plaintiffs were present in court with their Advocates. However, no officer of the Defendant nor its Advocate were present in court. Advocates for the Plaintiffs presented their clients’ cases to the court when their applications to do so were granted by the court. Both Plaintiffs gave oral evidence and documentary evidence. The Court order was that evidence at the trial would be by way of affidavit evidence only. That order was still on foot at the trial as it had not been varied and/or withdrawn before the trial. This meant that the oral and documentary evidence adduced by the plaintiffs during the trial would be disregard by the court while considering its judgments in these actions.

13. Polancos’ testimony and documentary evidence regarding the claim of $28,485.00 were merely given at the trial and not by way of affidavits filed on 22 May and 31 October of 2003 respectively. His testimony and documentary evidence in support of this claim were given in contravention of the court order, merely requiring that evidence would only be by way of affidavits. His oral and documentary evidence on this claim would therefore be disregarded. There is therefore no evidence to prove this claim and is dismissed.

14. Muslim also claims an equivalent sum of $28,485.00 for accommodation and living expenses incurred whilst awaiting trial of his action. This was set out in his Amended Statements of claim filed on 17 December 2003 and 29 January 2004. As stated above, no leave was granted by the court to file these Amended Statements of claim. The consent order to file Amended Statement of Claim was only filed and endorsed by the court on 18 February 2004. It follows that this claim was never lawfully filed in court and is dismissed.

15. Polancos was paid a salary of USD900.00 and SBD500.00 allowance per month under his first contract. He was unable to exhibit its copy to the court as it was lost in the Defendant’s Office at Ranadi during the Ethnic Tension in 2000.

16. Polancos claims $121,505.60 under the first contract[3] and $42,000.00 under the Second Contract[4] for outstanding salaries, allowances and entitlements.

17. The Defendant did not deny the existence of the first contract with Polancos in its Defence nor by evidence, as it filed no affidavit evidence in these actions. However, in its Defence, the Defendant denied owing any monies to Polancos and/or in the alternative, the Defendant contends that Polancos was barred from lodging any further claims against it as Polancos signed an indemnity with it after he was paid a total sum of $44,771.80.

18. There was indeed evidence that Polancos did execute an indemnity[5] on 4 February 2003, not to raise further claims against the Defendant. Advocate for Polancos submits that this indemnity was no bar to the recovery of the outstanding salaries, allowances and entitlements as they were statutory debts.

19. The court accepts such submission as it holds the view that such indemnity would not bar Polancos from using the legal process to sue for the recovery of his outstanding salaries, allowances and entitlements. He has a right in law to recover the same by legal process. This law is the Labour Act (Cap.72). Section 22 provides:

"S.22 Every worker shall be entitled to sue for and recover by Legal process so much of his wages exclusive of sums lawfully deducted in accordance with provisions of this Act as shall be paid to him in accordance with Section 19."

20. Polancos claims $33,000.00 due for salaries from 4 February 2003 to January 2004 under the second contract. There was no affidavit evidence covering this claim. It is dismissed. He also claims $3,000.00 leave pay under this contract. He is not entitled to this amount because he has not served for 12 months as required under the contract. It is also dismissed.

21. The court does not accept the Defendant’s Defence that it owes no monies to Polancos and Muslim. The Defendant had attempted to repatriate them without settling their outstanding wages, allowances and entitlements. The Defendant did not produce any evidence of its restructuring to the Commissioner of Labour. He ought to do so because it would result in the loss of jobs and earnings to the Plaintiffs.

22. Unpaid salaries, allowances and entitlements are statutory debts. They are liquidated damages, which can be ascertained by calculation from fixed rates of wages, allowances and entitlements. The court finds that the Defendant still owes the following debts under the first contract to Polancos: (i) $2,301.79 being for salary from 15 to 31 December 1996; (2) $42,805.57 being for salaries from January to December 2000; (3) $43,950.08 being for salaries from January to December 2001; (4) $7,500.00 for monthly allowances; and $14,000.00 for return Air tickets for 2000 and 2001. Total of payments due to Polancos is $110,557.44. These amounts are calculated in Solomon Islands currency from Exh. "JM3" annexed to the affidavit of Polancos filed on 22 May 2003.

23. Muslim’s action against the Defendant is for the recover $128,808.10 for outstanding wages, allowances and entitlements under the first contract; $32,500 for breach of his second contract and $2,500.00 for leave entitlement for 2003 under this second contract.

24. The Defendant denies owing any monies to Mulsim and/or in the alternative, pleads that Muslim had signed an indemnity not to raise further claims against it. My view in Polancos’ case above on the indemnity point applies equally to Muslim’s case. In fact, Muslim did not sign any indemnity[6] with the Defendant. Muslim claims $2,500.00 for leave entitlement under his second contract. He signed this contract with the Defendant on 26 March 2002 and that it was terminated by the Defendant on 4 February 2003. He merely worked for approximately 11 months under this contract. He is not entitled to the sum of $2,500.00 under the second contract because he did not complete 12 months service as required under the contract. This claim is dismissed.

25. The next claim by Muslim is for $32,500.00 for breach of his second contract. This $32,500.00 relates to wages payable for 13 months which he would have still worked had the Defendant not terminated the contract on 4 February 2003. There was no evidence on this claim in any of his affidavits. It is dismissed.

26. The final claim by Muslim is for the sum of $128,808.10 for outstanding wages, allowances and entitlements under First Contract. The Defendant did not deny the existence of this contract in its Defence. The court accepts that such contract existed between Muslim and the Defendant. I find that the Defendant still owes Muslim outstanding wages, allowances and entitlements due under that contract[7]: (1) $17,260.27 for balance of salaries from 1999 to 29 February 2000; (2) $36,101.08 for salaries from March to December 2000; (3) $30,010.72 for salaries from January to August 2001; and (4) $26,355.42 for salaries from September 2001 to 31 January 2002. Total $109,727.49. These amounts are calculated in Solomon Islands currency from Exh. "JM3" annexed to Muslim’s affidavit filed on 22 May 2003.

27. This court therefore asses damages for Joven Marques Polancos as follows:

(1)	$2,301.79
(2)	42,805.57
(3)	43,950.08
(4)	7,500.00
(5)	14,000.00
Total	$110,557.44

This total award of $110,557.44 is subject to Income Tax payable to the Government.

28. This court asses damages for Zuradin Muslim as follows:

(1)	$17,260.27
(2)	36,101.08
(3)	30,010.72
(4)	26,355.42
Total	$109,727.49

This total award of $109,727.49 is subject to Income Tax payable to the Government.

The Defendant is to pay Plaintiffs costs and if not agreed to be taxed.

Francis Mwanesalua
Puisne Judge

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^[1] Exh. “JM3” annexed to Joven Polancos’ affidavit filed 22 May 2003.
^[2] See Exh. “JM2” annexed to Zuradin Muslim’s affidavit filed 22 May 2003.
^[3] See Exhibit “JM3” annexed to Polancos’s affidavit filed on 22 May 2003.
^[4] Exhibit “JM2” annexed to Polancos’ affidavit filed on 22 May 2003
^[5] Exhibit “JM4” annexed to affidavit of Joven Polancos filed on 22 May 2003
^[6] See Exh. “JM4” annexed to the affidavit of Zuradin Muslim filed on 23 May 2003.
^[7] See Exh. “JM3” annexed to Zuradin Muslim’s affidavit filed on 25 May 2003.