Tuimaka v Toll [2010] SBTDP 1; UDF 37 of 2009 (6 July 2010)

IN THE TRADE DISPUTES PANELOF SOLOMON ISLANDS

Case No: UDF 37 of 2009

IN THE MATTER of the Unfair Dismissal Act 1982

AND IN THE MATTER of a complaint of Unfair Dismissal

BETWEEN:

CLAYTON TUIMAKA
Complainant

AND:

PDL TOLL
Respondent

Hearing: 1st December, 2009, Honiara.
Decision: 6th July 2010.
Panel: Wickly Faga Deputy Chairman
Mark Corcoran Employee Member
Elijah Gui Employer Member
Appearances: Selson Fafale, of Commissioner of Labour Office representing the Complainant.
Andrew Johnston, Deputy Project Manager (PDL Toll) representing the Respondent.

FINDING

The complainant in this matter made a complaint of unfair dismissal against the respondent on the grounds that the respondent had; "1. Failed to comply with s3. of the Labour Act by not providing proper/reasonable notice.2. Failed to provide legal grounds or justification for the sudden termination (natural justice), and 3. Failure to provide an opportunity for the complainant to explain himself (natural justice)."

The respondent denied dismissing the complainant and sought to resist the claim on the ground that; "Clayton was not terminated; he failed to turn up to work. So was replaced."

During the full hearing, the complainant gave sworn evidence that on the 23rd April 2009, one, Mr. Ian Stewart, who was then the Project Manager, called him to his office at about 5.00 pm, and verbally told the complainant that he was dismissed from employment. He also told the Panel that Mr. Stewart took his identification card and office keys. He further stated that he did not turn up to work the next day because he considered himself as being terminated when he was verbally told to that effect and also being requested to return office keys. He was not given any notice or pay in lieu of notice.

The complainant admitted receiving one warning letter from the respondent during the course of his employment. The warning was for not following orders.

In closing Mr. Fafale submitted that his client was terminated through improper procedures. That there was no notice served on the complainant as required by section 3 of the Labour Act [cap73], and that the respondent had acted unreasonably in all the circumstances. The complainant's dismissal was therefore unfair.

The respondent denies dismissing the complainant. Mr. Andrew Johnston told the Panel that the complainant failed to turn up to work and was replaced. He further stated that the respondent do not make verbal terminations.

In his brief evidence, Mr. Johnston told the Panel that he was present with Ian Stewart in a meeting on the 23rd April 2009. He saw a letter upside down, and does not know what it was. He also informs the Panel that Identification passes are purposely for entry into the Guadalcanal Beach Resort (GBR) where the Regional Assistance Mission to Solomon Islands (RAMSI) is based. The Identification Passes were not used for PDL Toll office where the complainant was working. He also cannot recall that keys were being removed from the complainant.

In closing, Mr. Johnston submitted that the respondent has procedures to follow and the complainant had been replaced. He also stated that the respondent do not make verbal terminations. The complainant was never terminated as there was no letter of termination.

There are two conflicting evidences. The complainant told the Panel that he was verbally told by Ian Stewart that he was terminated. On the other hand, the respondent denied dismissing the complainant and, instead said that complainant failed to turn up for work, so was replaced.

The question that the Panel would have to ask is which of the two evidences is to be believed. The Panel had after careful consideration of available evidence, and having observed the complainants composure and ability to recall the events, is satisfied on the balance of probabilities that the complainant was terminated, and that his termination was verbally communicated to him. The Panel is also satisfied that keys and other properties of the respondent within the possession of the complainant at the time of his dismissal were requested and returned. Accordingly the Panel finds that terminating without giving the complainant any reason for so acting, and failure to act reasonably in the circumstances amounts to unfair dismissal contrary to section 4 of the Unfair Dismissal Act 1982[cap77].

The complainant stated in clause 12 of his notice of complaint (TDP 1 Form) that one, Mr. Duncan Stewart who was then the Maintenance Manager is the father of the Project Manager, Ian Stewart, who he believed did not like him. He further claimed that that led to the bad working relationship with the Project Manager. There is however insufficient evidence to prove that allegation, and is accordingly dismissed.

In awarding compensation the Panel makes a fair and reasonable compensation in the sum calculated as follows;

Award

1. BW x 52	=	Compensation
792.40 x (52-27 = 25) =792.40 x 25	=	$19,810.00
2. One month payment in lieu of notice	=	$ 3,169.60
Total		$22,979.60

The respondent unfairly dismissed the complainant and is to pay $22, 979-60 to Clayton Tuimaka being payable immediately and is recoverable as a debt under section 10 of the Unfair Dismissal Act 1982.

Appeal

There is a right of appeal to the High Court within 14 days on points of law only, and any party aggrieved by the amount of compensation awarded may within one month of the date of the award appeal to the High Court as provided for under the Unfair Dismissal Act 1982, S. 7 (3).

Panel Expenses

The Panel fixes a contribution of $500-00 to cover Panel expenses, and this amount is to be paid by the respondent within 14 days from the date of this decision.

Dated the 6th of July 2010

On behalf of the Panel

Wickly Faga
Deputy Chairman/Trade Disputes Panel