Rusa v Island Sun Company [2010] SBTDP 2; UDF 11 of 2008 (24 September 2010)

IN THE TRADE DISPUTES PANEL OF SOLOMON ISLANDS

Case No: UDF 11 of 2008

IN THE MATTER of the Unfair Dismissal Act 1982

AND IN THE MATTER of a complaint of Unfair Dismissal

BETWEEN:

DONALDSON RUSA
Complainant

AND:

ISLAND SUN COMPANY
Respondent

Hearing: 6th April, 2010, Honiara.
Decision: 24th September, 2010.
Panel: Wickly Faga Deputy Chairman
Elijah Gui Employee Member
Walter H. Rhein Employer Member
Appearances: Selson Fafale, for the Complainant
Wilson Rano, counsel for the Respondent

FINDING

This is a complaint of unfair dismissal made pursuant to section 6 of the Unfair Dismissal Act 1982[cap77]. The complainant claimed unfair dismissal on the grounds that he was denied natural justice by the respondent's failure to approach him to discuss matters raised as reasons for his termination and that there was no previous warning.

The respondent admitted dismissing the complainant and sought to resist the claim on several grounds as contained in the complainant's termination letter dated 16th January 2008. The said letter contains nine reasons for the complainant's termination.

Mathias Loji gave evidence in support of the respondent's case. In his sworn evidence, Mr. Loji stated that he is currently the Managing Director of Island Sun Company Limited, the respondent which produces Island Sun Newspaper. The respondent is a business enterprise of Trade wind Investment Company, a holding company. The respondent company was established in 2006 and its first issue was on the 6th October 2006. The complainant is one of the founding members of the respondent company.

Mr. Loji also stated in his sworn evidence that the complainant was terminated for a number of reasons. The complainant's termination letter dated 16th January 2008[EX1] was identified by Mr. Loji. The relevant parts of the said letter states as follows;

"It is with deep regret that I inform [that] the Board has agreed to terminate your employment and Directorship with the company as from 12.00pm, 16th January, 2008."

"The Board's decision to take this action is based and guided by the following reasons;

1. Negligence of duty. (Failing to turn [up] for work on the 7th January as agreed by the Board).

2. Intentionally reducing the number of pages of the paper without consulting the Board or myself. My enquiries reveals that there were enough stories and advertisement booked for those issues.

3. On several occasions you have also intentionally omitted advertisement booked for publication resulting in company losing revenue.

4. Failure to comply with clients' art work requests.

5. Excessive drinking during working hours.

6. Blocking access to email/internet by continuously changing password.

7. Creating disharmony among directors and staff.

8. Failure to assist sales team with artwork/designs.

9. Removing company assets without permission."

Mr. Loji further stated in his evidence that prior to being terminated,the complainant was invited to attend a meeting that was called for all directors of the respondent company in or about October 2007. The purpose of the meeting was to discuss problems with publication. The complainant however refused to attend. Mr. Loji also stated that the complainant's work performance continued to deteriorate further. As a manager, Mr. Loji was worried that continuous poor work performance will not help the company against its competitors like Solomon Star. His priority area is advertising which is a major revenue source of the company.

Another meeting was also called a little later on. In that meeting, the complainant attended and was cautioned about his work performance. According to Mr. Loji, the complainant was asked if he had any issue with any person, to which he responded in the negative.

When asked in cross examination whether the respondent issued any warning for any of the incidences referred to in the complainant's termination letter, Mr. Loji stated that warning was an ongoing process, and the complainant was warned during every meeting on his attitude. Mr. Loji however told the Panel that the respondent was at the relevant time without any disciplinary procedures or any written policies. In his other evidence, Mr. Loji stated that he is responsible as Chairman of the Board to warn the complainant. He acts as adminstrator and Director. However, the power to terminate lies with the Board, and had exercised that power to terminate the complainant.

In closing Mr. Rano submitted that the conduct of the complainant justifies his dismissal. The complainant admitted that he holds an important position in the respondent's revenue collection. Therefore reducing the number of pages is a substantial reason to dismiss him. Mr. Rano further submits that Mr. Loji holds an important position as a Managing Director and Manager. In his capacity as Managing Director, he called a meeting to discuss the complainant's relationship with other staff and, caution members in respect of attitutes to work. The complainant did not attend. But if he had attended, he would have been cautioned. He also submitted that warning may come in many forms, and includes discussions between employer and employees. It does not have to always be in writing.

Mr. Rano further submitted that the complainant did not dispute that he shoulders a big responsibility in the company revenue collection. He also accepts that his position was crucial in the company. It is therefore very hard to terminate people with the complainant's experience and qualification. The Board even called a meeting but the complainant did not attend. The Managing Director also made an attempt to talk to the complainant personally. On that basis, it was submitted that the respondent had acted reasonably. And having regard to evidence before the Panel, there are substantial reasons to terminate the complainant.

The complainant's case was that, he was not warned or given an opportunity to tell his side of the story in respect of the nine offences that he was alleged to have committed. He gave evidence in support of his case. In his sworn evidence, he stated that he worked for Island Sun Company for one year and two months. He works overtime in most occassions. He works as a graphic designer. This involves laying out the design of the paper. So whatever comes out from the complainant is what comes out as the final product.

He was terminated from employment on the 16th January 2008. The said letter was written by Mr. Loji and then left it on the complainant's table. His termination was for different offences that were alleged to have been committed over a period of time. According to the complainant, he only knew those allegations when he received his termination letter. He was not given an opportunity to explain each of the allegations before making the decision to dismiss his employment. In cross examination, respondent's counsel put to the complainant that he had two opportunties to do so. The complainant however maintained he was not given any opportunity to explain his side of the story before making the decision to terminate him.

Also in his sworn evidence the complainant denied that he had been warned or counselled on any of those offences. He only responded after receiving his termination letter. In a letter dated 17th January 2008 [EX2], the complainant denied all allegations, and offered explainations for his actions on certain matters raised against him. In his sworn evidence, he told the Panel that, the paper would not come out if he was continuosly absent from work. He also denied that he reduced the number of pages. He would only do so with the approval from the other two directors, Mr. Priestly Habru and Mr. Richard Toke. He would also reduce the number of pages when the condition of power supply is unstable and when advertisments booked by clients do not arrive on time. The complainant also explained that not all fonts are in the computer he was using so he was trying his best to work on available fonts. He however admits that he drinks, but not excessively, because if he does, the paper would not come out. He also explained the reason for use of passwords. According to the complainant, the passwords were meant to protect designs he created because it would be expensive and time consuming to recreate. The complainant further told the Panel that he creates harmony and good relationship between staff and directors, and he is more close to staff than the Managing Director. He further explained that if he had failed to work with sales team, the paper would not go to print. As graphic designer, he works closely with the sales team. He also explained that he usually takes the company lap top and external hard drive home to do designs during his private times, and also to protect the designs from being tampered with.

The company did not make any response after the complainant offered explanations to allegations made in his termination letter.

Mr. Selson Fafale made closing submissions on behalf of the complainant. He submitted that the complainant is one of the founding members of the company and should have been credited with special dignity over and above other employees.

He further submitted that there is evidence that the complainant's termination was unfair. The complainant was denied natural justice, because he was not informed about the allegations until he was terminated. The allegations are many, and did not happen at once, but over a period of time. He should have been called to respond to each allegation, or he could have been warned for any of the alleged misconducts. The complainant denied that he was called twice to attend a meeting at which time his attitute to work could have been discussed. Mr. Fafale submitted that the manner adopted by the respondent to dismiss his client is improper and unfair. Therefore his client's termination is unfair.

In determining whether the complainant's dismissal is fair or unfair, the Panel must consider the reasons for dismissal, and the reasonableness of the respondent's actions. The Panel heard in evidence that the reasons for termination are, negligence of duty, intentionally reducing the number of pages and ommitting advertisements, failing to comply with client's artwork rquests, excessive drinking during working hours, blocking access to internet, creating disharmony between staff, failing to assist sales team and removing company assets without permission. The Panel had after taking time to carefully consider the seriousness of the allegations is satisfied that the reasons for dismissal were substantial reasons that justified the dismissal of the complainant.

Having establshed that the complainant was dismissed for substaintial reasons, the next question is whether the respondent had acted reasonably in treating the reasons as sufficient for dismissing the complainant. The respondent's witness told the Panel that he had spoken to the complainant about his work performance on a few occassions. Mr. Rano then stated in his submission that warning may come in many forms. This includes discussions between an employer and employee. It does not have to be in writing. The fact that the Managing Director had on occassions discussed with the complainant, matters relating to his work performance is already a warning. While the Panel agrees with counsel for the respondent that warning may come in many forms, there must also be satisfied that the recipient of that warning understood it to be a warning. The complainant told the Panel that he had never been warned or counselled on any of the allegations raised in his termination. He only knew those allegations against him when he received his termination letter on the 16th January 2008. Next day, he offered explanations to each of the allegations. There are conflicting versions of whether the complainant had been warned for any of the allegations. The Panel had after careful consideration of available evidence accepts the complainant's version; that he had never been warned for any of the offences alleged to have been committed by him. The respondent made the decision to terminate the complainant for the nine different reasons as contained in his termination letter. Given the seriousness of the allegations, one would have expected that the respondent deal with them as they happen. Here it is quite the opposite. The respondent waited until the complainant had committed nine offences before taking action. While the Panel does not wish to interfere with the respondent's management, it must be mentioned here that the respondent should have informed the complainant of which offence he was alleged to have committed. Then an opportunity should have been afforded for him to explain his side of the story. Also a simple letter warning the complainant could have done justice in the circumstances of this case. The respondent had not done so until it made the decision to terminate the complainant. This is in the Panels view unreasonable action on the part of the respondent in treating the reasons as sufficient for dismissing the complainant. The fact that the respondent has no written policies or disciplinary procedures is not an excuse to act as such. The Panel therefore finds on the balance of probabilities that the complainant's termination was unfair.

In awarding compensation, the Panel takes into account that the complainant was paid three months in lieu of notice.

In all the circumstances, the Panel makes a fair and reasonable compensation as follows;

1. Compensation = $17,000.00

AWARD

The respondent unfairly dismissed the complainant and is to pay compensation to Donaldson Rusa in the sum of $17,000.00, being payable immediately and is recoverable as a debt under section 10 of the Unfair Dismissal Act [cap 77].

COSTS

The respondent is ordered to pay $500-00 towards Panel expenses within 14 days from receipt of this finding.

APPEAL

The appeal provisions under the Unfair Dismissal Act 1982, The Trade disputes Act 1981, Trade Disputes Panel (Unfair Dismissal & Redundancy Procedure) Rules 1981, and the Solomon Islands Courts (Civil Procedure) Rules 2008 apply to this finding Award

Dated the 24th of September 2010

On behalf of the Panel

Wickly Faga
Deputy Chairman/Trade Disputes Panel