Funu v Ngira [2011] SBHC 120; HCSI-CC 340 of 2009 (12 October 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 340 of 2009

BETWEEN

ROY FUNU
Claimant

And

LOYLEY NGIRA
First Defendant

And

SOLOMON TELEKOM COMPANY Ltd
Second Defendant

Mr Fa'aitoa for the Claimant
Mr Puhimana for the First and Second Defendant

Date of Hearing: 2nd August 2011
Date of Judgment: 12th October 2011

Decision

1. On 9th September 2009 the Claimant filed a category B claim against the defendants. The claim sought orders challenging the dismissal of the Claimant from his employment with the Second Defendant ("Telekom"). Although a number of different orders are asked for, they amount to the same thing. The question for the court is should the Claimant be entitled to pursue his claim in the High Court rather than the Trade Disputes Panel. If the answer to that question is yes, should he be allowed to do so in the particular circumstances of this case.

2. The facts are relatively straight forward but very hard to find in any one place in the pleadings to date. The Claimant was said to have assaulted his supervisor, one Mr Maefaedafi, during working hours. This seems to have occurred on 23rd September 2008. The assault was reported to another senior supervisor, one Mr Aikins. This appears to have been on 29th September. The report was accompanied by a "statement" from a security officer, Mr Ohapwaoo. Mr Aikins called the Claimant into his office the same day. The Claimant is said to have admitted he threatened and assaulted his supervisor. He obviously made allegations of some sort against the supervisor because Mr Maefaedafi "made a response to the submissions" by the Claimant on 1st October 2008.

3. The reports were sent to the Assistant Manager Human Resources and Administration. The senior supervisor followed up the report on 11th November. A "collective" recommendation was made the Claimant be dismissed. On 14th November 2008 the First Defendant, as Chief Executive, wrote to the Claimant. A copy of the letter is shown as exhibit RF 9 attached to the sworn statement of the Claimant filed 9th June 2010. He was dismissed with immediate effect and was paid 30 days salary in lieu of notice. He was also paid repatriation costs.

4. The Claimant does not specifically deny the assault on Mr Maefaedafi, instead he challenges the processes that lead to his dismissal, or rather the lack of proper procedure. In 14 pages of detailed allegations he says the First Defendant, "did not possess the power or authority in law" to dismiss him and that he acted negligently, he also says there was no disciplinary committee set up to investigate what happened, that his dismissal was, "harsh, unjust and or unreasonable" and that he was denied natural justice. In short the Claimant is saying he was unfairly dismissed.

5. There is no real dispute the Claimant was dismissed on or about 14th November 2008. There is no suggestion he did not receive the letter (see paragraph 2 above) from the First Defendant. The 14th November 2008 was a Friday. Even if he did not receive the letter on that day he would have received it shortly afterwards. There is no suggestion he was away from work or Honiara for any length of time in November 2008.

6. Every employee has the right not to be unfairly dismissed. That is a statement of the law as set out in section 2(1) of the Unfair Dismissal Act [Cap. 77]. The remedy for an employee dismissed in breach of that right is provided by section 6 [1]. Section 6 says an employee, "...may present a complaint to the Trade Disputes Panel against his employer that he has been unfairly dismissed..." Section 6(3) says, "A complaint under this section may not be made after the end of the period of three months beginning with the date of dismissal". The Claimant should have lodged his complaint with the Trade Disputes Panel on or before 14th February 2009. He did not do so. There is no explanation why. He filed his Claim in September 2009 nearly twelve months after his dismissal.

7. It is said on behalf of the Claimant, he is entitled to bring the case before the High Court by reason of the unlimited original jurisdiction conferred upon the High Court by section 77(1) of the Constitution which says:

"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."

The judgment of Muria CJ in Cheon v. ROK and SI Total Event [2] is cited in support of that argument. With the greatest of respect to His Lordship the former Chief Justice, I believe his comments in Cheon went beyond what was actually said in Kenilorea v. AG [3]. There is a place in Solomon Islands judicature for other courts and tribunals and this was recognised by Connolly JA in Kenilorea:

"It is sufficient to say that to give full effect to s.77 (1) would not mean that as and when it becomes convenient, the National Parliament may not establish additional courts, e.g. intermediate courts such as the County Courts of England and the County and District Courts of Australia, or specialized courts such as the Family Court of Australia, Revenue Courts and the like with concurrent jurisdiction with the High Court. The unlimited jurisdiction of the High Court would be preserved but as a matter of convenience the jurisdiction would ordinarily be exercised by the newly established courts."

Pratt JA made very much the same point later in the Kenilorea judgment;

"This is not to say that the legislature may not define certain matters as being within the jurisdiction of one court or another court or may not bring specific new matters within the jurisdiction of the High Court or the Magistrate's Court. That, however, is an entirely different thing from telling the Judge or Magistrate what he must do in a particular case which comes before him."

8. Nothing in the Employment Act [Cap.72], the Labour Act [Cap. 73], the Trade Disputes Act [Cap. 75] or the Unfair Dismissal Act take anything away from the High Court in terms of unlimited original jurisdiction. There is no question the High Court can deal with "civil or criminal proceedings" arising out of the various employment related legislation, it is more of a question as to when the High Court should do so. In this case, even though it could be said the Trade Disputes Panel is not a court, it would be entirely wrong to allow the Claimant to lodge, in the High Court, a complaint which he is unable to lodge before the Panel because he did not do so in time. There is no explanation as to why the matter was not referred to the appropriate tribunal, the Panel, in time. No reason is put forward why these proceedings were filed 10 months after the dismissal. This is not an appeal from the Trade Disputes Panel's refusal to grant more time or allow a complaint out of time, this is an attempt to simply leapfrog the Panel. That cannot be right.

9. There is no provision in the Unfair Dismissal Act for an extension of time to lodge a complaint. That is not to say if the Claimant had gone to the Trade Disputes Panel and had been refused an extension of time he could not appeal to the High Court and be granted an extension. However, as must be made clear again, this is not an appeal. The Claimant is not even asking the High Court to extend time, he is saying, in effect, I can come straight to the High Court and am only bound (presumably) by the time limits set out in the Limitation Act and need not be concerned with any other statutory limits or requirements. Even if I have misunderstood the pleadings and the Claimant is asking for an extension of time, it has to be repeated, he has not explained the original failure to lodge his complaint within three months. He has filed a sworn statement dealing with delay, but that relates to his request to revive these proceedings after failing to do anything in the High Court for some 6 months or so.

10. There is no doubt the High Court's jurisdiction is concurrent with that of the Trade Disputes Panel. The High Court can do whatever the Trade Disputes Panel can do. However it would seriously undermine the authority of the Panel if, in the ordinary exercise of its concurrent jurisdiction, the High Court did something the Panel could not do. The Panel cannot entertain an unfair dismissal complaint more than three months after the dismissal and so the High Court should not, in the ordinary exercise of its concurrent jurisdiction, accept complaints or deal with claims filed more than three months after the dismissal.

11. In all the circumstances these proceedings should not be allowed to continue. They are an abuse of the process of the court. The claim is struck out. The Claimant shall pay the costs of the Defendants, such costs to be taxed on a standard basis if not agreed.

Chetwynd J

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^[1] Section 2(2) Unfair Dismissal Act
^[2] Chan Ho Cheon V ROK and SI Total Event Ltd [1998] SBHC 78; HCSI-CC 2 of 1998 (6^th April 1998)
^[3] Kenilorea v Attorney General [1984] SILR 179