Solomon Islands National Union of Workers v Russel Islands Plantation Estates Ltd [2012] SBHC 100; HCSI-CC 509 of 2010 (31 August 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Jurisdiction

BETWEEN:

Solomon Islands National Union of Workers
Claimant

AND:

Russell Islands Plantation Estates Limited
First Defendant

AND:

Pacific Management Services (SI) Limited
Second Defendant

AND:

John Whiteside
Third Defendant

Hearing : 23 MAY 2012
Judgment : 31 August 2012

Mr. Marahare for Claimant
Mr. Radclyffe for Defendants

JUDGMENT

Mwanesalua J:

1. This is a claim filed by the Claimant against the Defendants on 17 December 2010. The Claimant seeks: (1) An order for declaration that the award by the Trade Disputes Panel dated 29 October 2005 and upheld by the High Court on 18 February 2010 is a valid award that has to be facilitated by the First Defendant's Directors; (2) An order for enforcement of the said award of the Trade Disputes Panel dated 28 October 2005 and confirmed by the High Court on 18 February 2010; (3) Costs against the First, Second and Third Defendants in the present proceedings and in the courts below; and (4) Any other order that this court deems fit to make.
   
2. The award referred to in this claim was made by the Trade Dispute Panel on 29 October 2005. It is in these terms: "Accordingly the Panel recommends as follows: 1. All terminated employees as named in this proceeding be immediately reinstated on same terms and conditions as before. 2. The RIPEL Board to meet within 14 days from today to facilitate the termination of John Whiteside's employment as General Manager of RIPEL by giving due notice as provided for under his contract of employment with the company"
   
3. RIPEL appealed the panel's decision to the High Court. The appeal was dismissed. At page 5 of the High Court judgment the court said:- "The recommendation that his employment be terminated was well within the powers of the TDP based on the evidence that it heard and the finding it made". The Claimant asks this court to declare that the award was valid and that it must be "facilitated by the First Defendant's Directors".
   
4. The Defendants have filed defences to the claim. Their case is that the panel's award is merely a recommendation that certain actions be taken by the RIPEL Board. The panel made no order to remove the Third Defendant as the General Manager of RIPEL. Acting upon that recommendation, the directors of RIPEL were free to either agree with or reject the award. The directors rejected the award for, among other reasons that the High Court had taken no notice of RIPEL Management's call to return back to work and that Third Defendant had done nothing wrong.
   
5. I noted that the High Court previously upheld the Panel's recommendation, but did not make any order for the removal of the Third Defendant as the General Manager of RIPEL. The entire decision of the Panel was not in the court file. I could not therefore see the reasons for the Third Defendant to be removed as the General Manager of RIPEL on the part of the Panel.
   
6. Awards are covered under section 7 of the Trade Disputes Act (Cap. 75). ("the Act") It is mandatory under section 7 (1) that reasons be shown in awards. It states, "7 (1). Any award of the Trade Disputes Panel shall show the reasons for the award". There are also no reasons provided in the award for all the terminated employees to be reinstated as shown in the award.
   
7. "Award" is not defined in the Trade Dispute Act (Cap. 75). But under the UK (Arbitration Act, 1950, S.26), among other things, an award must be certain, legal, final and disposes of all the differences submitted to arbitration. In this claim, the ward provided no reasons for the proposed termination of the Third Defendant's contract to be the General Manager of RIPEL in accordance with the Act. But importantly, the use of the word 'recommendation' in the award seem to render it as a mere official suggestion which the Management of the First Defendant decided otherwise. It has not been proved on the balance of probabilities whether the award was an order, that is say, a command or direction, and not merely a recommendation to consider the removal of the Third Defendant as the General Manager of RIPEL. In the circumstances, the court will refuse to grant the orders sought. The claim will be dismissed.
   

Order: The claim is dismissed with costs.

THE COURT