Neboth v Maximus International Ltd [2010] SBTDP 8; UDF 38 of 2008 (26 November 2010)

IN THE TRADE DISPUTES PANEL OF SOLOMON ISLANDS

Case No: UDF 38 of 2008

IN THE MATTER of the Unfair Dismissal Act 1982

AND IN THE MATTER of a complaint of Unfair Dismissal

BETWEEN:

RODRICK NEBOTH
Complainant

AND:

MAXIMUS INTERNATIONAL LIMITED
Respondent

Hearing: 4th May, 2010, Honiara.
Decision: 26th November, 2010.
Panel: Wickly Faga Deputy Chairman
Elijah Gui Employee Member
_ Employer Member
Appearances: Ben Etomea, counsel for the Complainant
Primo Afeau, counsel for the Respondent

FINDING

This is a complaint of unfair dismissal against the respondent. The complainant alleged unfair dismissal on the grounds that,

"In the month of January 2008 as the respondent changed its logging business operation the complainant was instructed by the camp manager Mr. Ling to remain at Nono log pond to finish up the last two shipments in the month of February and March 2008 and thereafter some requested money is to be sent to the complainant in order for him to come over to Honiara and then to malaita. The complainant was not paid the salary for the months of February and March even though he worked for that two months."

"...As from the month of March 2008 the complainant waited for the advance pay of $2,000.00 to be sent over to him as agreed but nothing was done. Beside that the complainant was not given any notice as to whether employment was terminated or not until then."

The respondent denied dismissing the complainant and sought to resist the claim on the grounds that;

1. He agreed not to be made redundant and to be transferred to another camp,

2. Refused to board the company vessel on the date vessel was to load the equipment and demanded cash advance of $2,000.00,

3. Camp Manager advised him if he still wanted to work to come to Honiara and company would arrange fare to go to the Isabel camp. He agreed to this in early February 2008,

4. Only turned up in Honiara about five months later.

Since the Respondent denied dismissing the Complainant, the onus was on the Complainant to show that he was dismissed, and that his dismissal was unfair.

During a full hearing of this matter, the Complainant sought to support its case with evidence from sworn statements of Joanly Trevor, Elma Kohryea and the Complainant himself. The Respondent relied on the sworn statements of Mr. Marvin Baekisapa and that of Mr. Ling Kah Tong in support of its case.

The facts not in dispute are that; the Complainant was employed under a contract of employment with the Respondent on the 10th July 2006. He was employed as Chief Scaler, and was stationed at Nono Camp, Western Province. At the end of the first week of February 2008, the Respondent had to close its operations at Nono Camp due to a High Court Order made on the 21st November 2007. As a result of the closing of its operations at Nono Camp, the Respondent had to lay off most of its workers at the Camp. The Complainant however wanted to retain the Complainant to work in one of its other camps in other provinces. The Camp Manager asked the Complainant in January and agreed to continue to work for the Respondent. He however asked the Camp Manager for a $2,000-00 advance from the Company before he could go. The Complainant remained at his home until August when he came to Honiara and inquired about his unpaid wages for February to August 2008, at the Respondent's Head Office. During this period, the Complainant did not contact the Respondent Company eventhough he knew the Respondent's radio frequency.

The contentious facts however are, that the complainant asserted that the Camp Manager promised to send him $2,000-00 salary advance and money for his sea fare to come to Honiara, and that he should wait at home until he got the money. On the other hand, the Camp Manager denies making any such promise to the Complainant, saying that there would be no guarantee that he would work for the Respondent and therefore refund the money. His version was that he would only make the advance if the complainant started work in one of the Respondent's Camps. There are conflicting versions to their stories. Who then is the Panel to believe? Both parties did have genuine concerns. The complainant was concerned for his family's welfare, and that the changing circumstances of his employment are such that he had to strike a balance between his family's welfare and his employment. In his attempt to manage the situation, he had to request an advance of his salary. On the other hand the Respondent is bound to be concerned about the repayment of the salary advance. As an employer, the Respondent had to be wary of the possibility of the Complainant absconding from work after receiving the money, compounded with the difficulty of recovering it.

In his closing submission, Counsel for the Respondent submitted that the Complainant was not dismissed by the Respondent. It was the Complainant himself who, by insisting on the advance of $2,000-00 had failed to accept the Respondent's offer for continuing employment. When the Complainant came to Honiara, the Respondent had no contract of employment with him, and that no job was available for him.

Counsel for the Complainant however submitted that the advance was intended for his family whilst he is away working for the Respondent in other Camps. He also submitted that the Complainant was still employed because his name was not on the list of workers to be made redundant. He also submitted that his client was constructively dismissed.

The Panel had, after careful consideration of available evidence and submissions, accepts the Complainant's version of events, although it would appear unreallistic in the real world of employment relationships. The Panel accepts the Complainant's evidence that he reguested from the Camp Manager, Mr. Ling, an advance of $2,000-00, and he was told by Mr. Ling that he did not have the $2,000-00 with him at that time, so he promised to send the money to the Complainant through Elma Korhyea's canteen. The Complainant was to remain at his home until he receives the money before he could come over to Honiara. The Respondent's Head Office would then send him to any of its camps in Isabel or Malaita.

Having accepted the Complainant's version of events, there needs to be established, whether the Complainant was dismissed, and by whom. The Respondent, had in its TDP2 Form, denied that it dismissed the complainant. The Complainant therefore bears the burden of proving that he had been dismissed by the Respondent, and that his dismissal was unfair. The Complainant stated in his TDP 1 Form that he was dismissed on the 10th of September 2008, but no evidence was adduced by the Complainant to show that he was dismissed on that particular date. However there was evidence that when the Complainant came to Honiara in August 2008, the Respondent had no job available for him. But it is unclear as to when and how the Complainant's job became non-available. Under normal circumstances, an employer would communicate such information to its employee. The Complainant only knew that there was no job available for him when he turned up at the Respondent's head office in August 2008. In the Panels view, the Complainant's employment with the Respondent was terminated when he found out in or about August that there was no longer job available for him.

But is it reasonable act on the part of the Complainant to wait seven months for the money without even contacting the employer to find out the reason for the delay and any alternative arrangements? According to evidence before the Panel, the Complainant was promised that his request for salary advance would be sent to him soon after Mr. Ling arrives in Honiara. The Complainant was told to wait, so he remained at his home from February until May 2008, when he passed a message through Adria, who was coming to Honiara, to check on the promise. Adria checked with his mother Elma. Elma then advised that she did not receive from the Respondent any money intended for the Complainant. The Complainant then insisted on waiting for the money until in or about August 2008 when he came over to Honiara. He did however had the option of talking to the Respondent by radio from his home. But it appears that he chose not to use that faster and more effective medium. He reluctantly waited for the salary advance for seven months. In the Panel's view that is not reasonable wait. The Complainant should have made contacts after a week of Mr. Ling's arrival in Honiara. His continious wait for seven months is excessively too long.

While the Respondent had failed to send the money to the Complainant as promised, the Complainant had not acted as an employee, by his very act of reluctantly staying at his place for seven months without making contacts with the Respondent through radio wireless.

The Panel had after due deliberations on available evidence is satisfied that the Complainant was dismissed for excessive absence from work. However, the Respondent had failed to properly inform the Complainant when there was no longer job available for him. The Respondent could have done justice to the Complainant if he was being informed of when there was no longer job available for him. In the Panel's view, the Respondent had not acted reasonably in the circumstances of this case. Based on the balance of probabilities, and to the extend of the Respondent's failure to inform the Complainant when there was no longer job available for him, the Panel finds that the Complainant's termination was unfair.

In awarding compensation, the Panel takes into consideration that the Complainant had, by his unreasonable act of continuous stay for seven months, contributed to his own fate. The Panel makes a fair and reasonable compensation as follows;

AWARD

1. Compensation BWx52 = $187.50 x (52-32) = $3,750.00

The respondent unfairly dismissed the complainant and is to pay compensation to Rodrick Neboth in the sum of $3,750.00, 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

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 26th of November 2010

On behalf of the Panel

Wickly Faga
DEPUTY CHAIRMAN/TDP