Tumuri'i v Cafe' [2010] SBTDP 7; UDF 12 of 2009 (19 November 2010)

IN THE TRADE DISPUTES PANEL OF SOLOMON ISLANDS

Case No: UDF 12 of 2009

IN THE MATTER of the Unfair Dismissal Act 1982

AND IN THE MATTER of a complaint of Unfair Dismissal

BETWEEN:

MARY TUMURI'I
Complainant

AND:

KOKOSI CAFE'
Respondent

Hearing: 1st June, 2010, Honiara.
Decision: 19th November, 2010.
Panel: Wickly Faga Deputy Chairman

- Employee Member

Walter H. Rhein Employer Member
Appearances: Selson Fafale, for the Complainant
No appearance (barred), for the Respondent

FINDING

The Complainant claimed that she was unfairly dismissed by her employer, the Respondent. She alleged unfair dismissal on the following grounds;

1. Denial of natural justice, i.e, was not given any chance to be heard

2. Temination without previous warnings,

3. No notice of dismissal.

The Respondent did not file its notice of appearance and pursuant to rule 7 (2) of the Trade Disputes Panel (Unfair Dismissal Redundancy) Procedure Rules, 1982, it was barred from taking part in the proceedings of this matter. During the full hearing, only the Complainant gave evidence in support of her case. In her evidence, she told the Panel that the Respondent operates a restaurant called Kokosi Café (the Café) along the Vura Road. She commenced employment as Assistant Cook with the Respondent in February 2004 until March 2009, when she was dismissed from employment. The Complainant told the Panel that on the 19th March 2009, it was raining heavily. She got really wet while trying to get to her place of work, so she returned home. She turned up the next morning and started working as usual. Whilst she was busy working, her female colleague, one, Esther came in late. It was then that their boss, one Mr. Dong was furious and talked to Esther. After talking to Esther, he turned around and told the Complainant that she was one of those who did not come to work yesterday. When she tried to explain, Mr. Dong said that she talked too much and told her that she was sacked. When she heard that she was sacked, she could not believe it, and kept standing inside the Café. Mr. Dong was angry and ordered her out. The Complainant then went outside and stood there without doing anything. A few minutes later, Mr. Dong opened the door and saw the Complainant still standing outside, and ordered her out from the Café premises. She then said"thank you" to Mr. Dong and left.

The Complainant went home and was hoping that Mr. Dong would change his mind. However, after one week, she was not recalled as anticipated. She then sought assistance from the Commissioner of Labour Office. A letter dated 25th March 2009 was issued out from the Office of the Commissioner of Labour. The said letter informed the Respondent that the Labour Office had received a complaint of unfair termination from the Complainant, and that in their opinion; the circumstance surrounding her termination was unfair. The Complainant then took the letter and presented it to Mr. Dong. After reading the said letter, Mr. Dong told the Complainant that her termination was by then effective because she delivered the said letter.

In closing, the Complainant's representative, Mr. Fafale submitted that the reason for his client's termination was not substantial that justify the dismissal of the Complainant. It was therefore submitted that on that basis, the Complainant's termination was unfair.

After having considered all available evidence and having read the submission, the Panel is of the view that the Complainant was dismissed by the Respondent for being absent from work for one day. The Complainant did tell the Panel that on the day she was absent, it was raining heavily, and she got really wet trying to get to her place of work so she returned home instead. This explanation was not considered by the Respondent. The Complainant also told the Panel that she was not warned anytime during her five years working for the Respondent. The Panel took time to consider the reason for dismissal and is not satisfied that it is one of a substantial nature to justify instant dismissal. In the Panels view, a warning could have done justice to the Complainant.

The Panel therefore finds on the balance of probabilities that the Complainant was unfairly dismissed. A fair and reasonable compensation is awarded as follows;

AWARD

1. Compensation	= $4,000.00
2. One Month in lieu of notice	= $ 800.00
Total	$4,800.00

The respondent unfairly dismissed the complainant and is to pay compensation to Mary Tumuri'i in the sum of $4,800.00 being payable immediately and is recoverable as a debt under section 10 of the Unfair Dismissal Act 1982 [cap 77].

COSTS

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

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).

Dated the 19th of November 2010

On behalf of the Panel

Wickly Faga
DEPUTY CHAIRMAN/TDP