Hitukera v Golden Springs International (SI) Ltd [2010] SBTDP 3; UDF 55 of 2008 (29 September 2010)

IN THE TRADE DISPUTES PANEL OF SOLOMON ISLANDS

Case No: UDF 55 of 2008

IN THE MATTER of the Unfair Dismissal Act 1982

AND IN THE MATTER of a complaint of Unfair Dismissal

BETWEEN:

NELSON HITUKERA
Complainant

AND:

GOLDEN SPRINGS INTERNATIONAL (SI) LTD.
Respondent

Hearing: 6th April, 2010, Honiara.
Decision: 29th September 2010, Honiara.
Panel: Wickly Faga Deputy Chairman
Walter H. Rhein Employee Member
Elijah Gui Employer Member
Appearances: Allan Niro Hou, counsel for the Complainant
No appearance by counsel for the Respondent

FINDING

The complainant was employed by the respondent as crew on board its vessel MV. Enogae. He was dismissed on the 19th November 2008. He filed this complaint on the ground that he was being requested to come over to Honiara, from Kava camp, to collect his holiday pay. His annual leave commenced on the 11th November 2008. He boarded MV Enogae and came to Honiara, arriving on the 17th November 2008. On the 21st November 2008, the respondent, instead of paying holiday pay, paid the complainant termination pay. The complainant denies having received any warning either verbal or written prior to his termination. The respondent stated in its notice of appearance that the complainant was dismissed for breach of terms and conditions of his employment and that he had already been served with a second and final warning.

During a full hearing of this matter, the respondent's solicitor failed to attend without any explanation. This matter was listed previously on three different occassions; first on the 21st April 2009, for prehearing, second on the 21st September 2009, for full hearing and third, on the 30th of March 2010, for full hearing. During all these times, the respondent solicitor was duly informed of the dates, time and place of hearing by the Panel Secretary. Despite the notices from the Panel Secretary, neither the respondent nor its solicitor appeared during those dates. The matter was again listed for the 6th April 2010 for full hearing. The respondent solicitor again failed to turn up with no explanation. The Panel had in its discretion, allowed the full hearing to proceed in the absence of the respondent.

The complainant told the Panel that on the 14th November 2008, the respondent's personal manager one, Mr. Vincent Sangatu sent a message via radio wireless to the complainant at Kava camp. The message was that the respondent requested the complainant to come over to Honiara to get his holiday pay. He was also to take his annual leave which had already commenced on the 11th November 2008.

Upon receiving the message, the complainant boarded MV Enogae, the respondent's vessel, and came over to Honiara. He arrived in Honiara on the 17th November 2008. He admmitted to drinking alcohol on the night of his arrival in Honiara. He did so on the understanding that he was already on annual leave. On the 18th November, he went and enquired at the respondent's Head Office at White River about his holiday. He was assured that he would be paid his holiday pay when Mr. Sangatu, who was then visiting his sick mother at his village on West Guadalcanal, resumes duties.

On the 19th November 2009, the complainant received cash, the sum of $7,030.95. Accompanying that was his termination letter dated the 19th November 2008[Ex1]. It was then that he realised that the money he was paid was his termination pay and not holiday pay as was previously assured. A breakdown of his pay was handed to him on the 21st November 2008[Ex2]. The complainant denied receiving any verbal or written warning prior to his termination. He was earning around $300-00 per fortnight at the time of his dismissal.

In his closing submission, Mr. Hou stated that there is sufficient evidence before the Panel that the complainant's dismissal was in all the circumstances unfair. The following evidence justifies that the respondent's dismissal of the complainant was unfair. That is, on the 14th November 2008, he was requested to come over to Honiara. He was to come and collect his holiday pay which had already commenced on the 11th November 2008. The complainant arrived in Honiara on the 17th November 2008, and although he was already on annual leave as of 11th November 2008, he assisted his colleagues on board MV Enogae until 5.00pm. On the next day being the 18th November 2010, the complainant enquired with Ms. Jenny at the respondent's Head Office at White River, and she advised him that he had to wait for Mr. Sangatu to release his holiday pay. When Mr. Sangatu finally released payment to the complainant, the respondent advised him per its letter of 19th November 2008 that he had been dismissed. The same letter informed the complainant that the reason for dismissal was that he went out drinking alcohol during the night of his arrival on the 17th November 2008, and that he had already been warned previously, a fact he denied.

The Panel had after careful consideration of available facts is satisfied that the complainant was dismissed from employment on the 19th November 2008, and that the reason for his dismissal was for drinking alcohol on the night of his arrival in Honiara on the 17th November 2008. The Panel is also satisfied that the complainant was already on annual leave when he arrived in Honiara. He was only waiting for his holiday pay.

There is no evidence before the Panel to show that the complainant was repeatedly issued with warning letters.

Having taken time to consider all available evidence and having regard to the uncontested evidence, the Panel is satisfied that the complainant was dismissed for no substantial reasons at all, which justifies his dismissal. The Panel therefore finds that the complainant's dismissal was unfair.

In all the circumstances the Panel makes a fair and reasonable compensation award as follows.

1. Compensation $9,360-00

AWARD

The respondent unfairly dismissed the complainant and is to pay compensation to Nelson Hitukera in the sum of $9,360.00, 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 29th of September 2010

On behalf of the Panel

Wickly Faga
Deputy Chairman/Trade Disputes Panel