Takika v Honiara City Council [2010] SBTDP 5; UDF 58 of 2010 (20 October 2010)

IN THE TRADE DISPUTES PANEL OF SOLOMON ISLANDS

Case No: UDF 58 of 2010

BETWEEN:

THOMAS NELSON TAKIKA
Complainant

AND:

HONIARA CITY COUNCIL
Respondent

Hearing: 19th October 2010
Decision: 20th October 2010
Panel: Wickly Faga Deputy Chairman
John Adifaka Employer Member
Duddley Hoala Employee Member
Appearances: Wilson Rano, Counsel for the Complainant
Eddie Kii, Counsel for the Respondent

RULING

The complainant’s employment was terminated on the 24/07/09. He filed his complaint of unfair dismissal, pursuant to subsection 6(1) of the Unfair Dismissal Act [cap77] (UDA) on the 16/07/10. During a prehearing of this matter, Respondent’s Counsel, sought to have the matter dismissed on the basis that it was filed out of time. This was supported by the sworn statement of Rebecca Bigg-Wither that was filed on the 18/10/10. The said application raises the issue, whether the Panel has jurisdiction to extend time allowed for filing complaints. The Panel is therefore asked to make a ruling on that issue.

In doing so, the Panel refers to the case of Mobil Oil Australia Limited-v-Kwaeria [2001] SBHC 116. The issue before the Court then was similar to the question before the Panel now; whether subsection 6(3) of UDA gives discretion to the Panel to enlarge or extend time for filing of a complaint of unfair dismissal. In that case the Court held that the Panel has no jurisdiction to extend time for filing a complaint.

Subsection 6(3) of the UDA provides that, “A complaint under this section may not be made after the end of the period of three months begining with the date of dismissal.” Palmer J as he then was, took the view that subsection 6 (3) of the UDA does not give discretionary powers to the Panel to extend time. His Lordship stated that, “The word “may” in subsection 6(3) cannot be considered in isolation to the word “not”.The use of the word “not” which follows immediately the word “may”...removes any discretionary element associated with the word “may”. When used together they denote the denial of power or permission which otherwise could have been available had the word “not” been added.” (Page2, http://www.paclii.org/sb/cases/SBHC/2001/html)

Counsel for the Respondent reluctantly raised rule 13(1) of the Trade Dispute Panel (Unfair Dismissal and Redundancy) Procedure Rules (the rules), as giving power to the Panel to extend time, much to the relief of the complainant’s side. Rule 13(1) of the rules provides that, “An application to the Panel for an extension of time appointed by these rules for doing any act may be made by a party.” This rule was hoped that it could assist the complainant at least. Unfortunately though, the Court in Mobil Oil Australia-v-Kwaeria had decided otherwise. Palmer J as he then was, took the view that, “Rule 13(1) cannot do what the Rules had not given.That was fixed by UDA under subsection 6(3). Rule 13(1), therefore cannot give to the Panel power to extend time limit fixed under the Act.It is important to note that rule 13(1) is confined only to limits “appointed by these rules”.(Page3, http://www.paclii.org/sb/cases/SBHC/2001/html)

By virtue of the authority in Mobil Oil Australia-v-Kwaeria, the Panel is bound to follow suit. Accordingly the Panel hereby rules that it has no jurisdiction or power to extend time for filing any complaint lodged after the period of three months beginning with the date of dismissal.

It was not disputed that the Complainant was dismissed by the Respondent on the 24/07/09. It was also not disputed that the Complainant lodged his complaint on the 16/07/10, eight months after the three months period allowed for filing of complaints. Based on the authority of Mobile Oil Australia-v-Kwaeria, the Trade Disputes Panel cannot assist the complainant any further. Accordingly, the Complainant's unfair dismissal complaint that was filed with the Panel Secretary on the 16/07/10 must be dismissed. We make no order as to costs.

There is a right of appeal to the High Court within 14 days.

Dated the 20th of October 2010,

Wickly Faga
DEPUTY CHAIRMAN/TDP