King v Gold Ridge Mining Limited [2009] SBHC 16; HCSI-CC 90 of 2009 (8 May 2009)

IN THE HIGH COURTOF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN:

JULIAN MACKINLAY KING
Claimant

AND:

GOLD RIDGE MINING LIMITED
Defendant

Date of Hearing: 20 April 2009
Date of Decision: 8 May 2009

Ms. Maelyn Bird for Claimant
Mr. Andrew Radclyffe for Defendant

DECISION ON APPLICATION TO STRIKE OUT CLAIM

Cameron PJ

1 In this claim the claimant Julian King sues his former employer Gold Ridge Mining Limited (Gold Ridge). He claims that his contract was "unlawfully terminated" and seeks damages under various heads. His employer applies to strike out the claim on the grounds that it discloses no reasonable cause of action and is frivolous and vexatious.

2 It is apparent from the written contract of employment (admitted by consent) that on 29 February 2008 Julian King was engaged as a Senior Geologist with Gold Ridge. The agreement describes Julian King as a contractor. The duration of the appointment was not fixed, clause 5.1 providing that the "agreement will remain in force until it is terminated."

3 As to termination of the agreement, clause 16.1(a) provides for termination of the agreement in the event of summary dismissal for cause, and outlines various circumstances which would entitle the company to summarily dismiss the contractor. Clause 16(1)(b) and (c) provide for the termination of the agreement in the event of extended incapacity of the contractor, and the failure by the contractor to meet performance objectives.

4 Clause 16.2 provides:

"If the Contractor is terminated, unless for the reasons defined in clause 16.1, he will receive one month (sic) written notice".

Plainly this badly drafted clause is intended to mean that if the agreement with the contractor is terminated by the company other than for any of the reasons specified in clause 16.1, then he is entitled to one month’s written notice. A similar right is given to the employee to provide one month’s written notice of resignation.

5 Clause 16.5 provides:

"Wherever the Company is required to provide written notice of termination, it may at its election provide payment in lieu of notice".

6 On 10 September 2008 Julian King was handed a letter from the company signed by its Chief Financial Officer, which states:

"Dear Julian,

Gold Ridge Mining Limited (GRML) hereby exercises its right under the Management Employment Deed with you to terminate your employment effective as at the date of this letter. GRML will pay one month’s salary in lieu of notice under the terms of the contract.

Yours faithfully

David Roach

Chief Financial Officer".

7 The letter provided no reasons for the dismissal.

8 It is apparent from the statement of claim that Julian King has various complaints about the conduct of the company’s officers towards him and others during the period of his engagement. The claim in effect asserts that the real reason he was dismissed was because he challenged the company both as to the poor behaviour of its officers towards landowners and its local employees, and as to possible breaches of labour laws by it.

9 As to the dismissal itself, paragraph 15 of the statement of claim states:

"The Claimant alleges that his contract of employment with the Defendant was unlawfully terminated according to the following reasons:-

i) that no written warning was given to him during the term of his employment;

ii) that if there was any allegations by the Defendant about breach of contract and/or his duties, the said allegations were never put to him either verbally or in writing;

iii) that if the allegations were put to him either verbally or in writing by the Defendant, he would have an opportunity to respond to the said allegations;

iv) that in view of the fact no allegation was put to him verbally or in writing, he was denied his right to be heard by the Defendant;

v) that because he was denied his right to be heard in his Defence, his termination must be held to be unlawful."

10 Paragraph 16 of the statement of claim then states:

"In view of the particulars stipulated in paragraph 15 above the Claimant seeks the following orders:-

i) that his termination of the 10th September was unlawful;

ii) that he be entitled to receive damages for breach of contract, unlawful termination, harassment, defamation of character, and loss of income to be assessed by the court; and,

iii) The Claimant also claims interest and costs."

11 As indicated, the Statement of Claim relies on an alleged ‘unlawful termination’ to found the claim for damages. There is, of course, no cause of action for ‘unlawful termination’ or ‘unlawful dismissal’ which arises from the present facts. ‘Unlawful’ means against the law, and there is no law in Solomon Islands preventing an employer dismissing an employee (except in the particular circumstances outlined in section 10 of the Trade Disputes Act, which have no application to these facts).

12 Recognising this, Ms. Bird as counsel for Julia King advised the Court at the hearing that the intention was to amend the pleading to change the terminology from ‘unlawful termination’ to ‘wrongful dismissal’.

13 There exists a common law action of wrongful dismissal. In Halsbury’s Laws of England, 4th ed, Vol. 16(1B) para. 697, wrongful dismissal is defined as follows:

"A wrongful dismissal is a dismissal in breach of the relevant provision in the contract of employment relating to the expiration of the term for which the employee is engaged."

14 In the present case, there was no fixed period for which Julian King was employed. The contract expressly set out the ways in which the contract was able to be terminated. One of those was by the resignation of the contractor with one month’s written notice. Another was by the company giving to the employer one month’s written notice (16.2), or a month’s payment in lieu of notice (16.5). The contract does not require any reason for dismissal to be given.

15 This is, of course, precisely what occurred in this case, and the claimant has been unable to point to any breach of any term of the written contract by the company.

16 I therefore find there is no reasonable cause of action disclosed on the grounds of alleged ‘wrongful dismissal’.

17 This leaves for consideration whether the claimant may be able to assert he was ‘unfairly dismissed’, though this has not been pleaded or relied upon by the claimant. Under Solomon Islands law, a person who wishes to pursue a claim of unfair dismissal must file an unfair dismissal complaint with the Trade Disputes Panel (Unfair Dismissal Act). This is a statutory claim, and as stated in Halsbury’s Laws of England, 4th edition, Vol. 16(1B) para. 697, it is separate and distinct from the common law claim for wrongful dismissal.

18 This Court has no jurisdiction at first instance to entertain a claim of unfair dismissal (though there are limited rights to appeal a decision of the Trade Disputes Panel). A complaint of unfair dismissal can only be pursued in the first instance by presenting a complaint to the Trade Disputes Panel under the Unfair Dismissal Act.

19 By section 6(3) of the Unfair Dismissal Act, a complaint of unfair dismissal cannot be made to the Trade Disputes Panel after 3 months from the date of dismissal. There is no jurisdiction for the Trade Disputes Panel to extend time (Mobil Oil Australia Ltd v. Kwaeria [2001] SBHC 116]. There is no suggestion that the claimant has made a complaint to the Trade Disputes Panel.

20 For these reasons, there can be no cause of action for unfair dismissal in this Court.

21 This leaves the claim for damages. The first head is for breach of contract, and for reasons given then are no reasonable grounds for maintaining there has been any breach. The second is for unlawful termination (which is sought to be amended to wrongful dismissal) – for reasons given a claim for wrongful dismissal cannot succeed. The third is for harassment for which then is no cause of action in a case such as this. The fourth is for defamation of character. Defamation in the form of libel or slander must be properly pleaded, including for example a pleading as to the precise words used. The statement of claim makes no attempt to plead such matters, and the facts as outlined disclose no reasonable cause of action in that respect. Fifthly, there is a claim for loss of income, which is not a cause of action in itself.

22 The claim is dismissed as disclosing no reasonable cause of action.

23 The defendant is entitled to costs of $2000, payable within 28 days of the date of this order.

BY THE COURT