Seni v Island Sun Newspaper [2010] SBTDP 9; UDF 32 of 2009 (17 December 2010)

IN THE TRADE DISPUTES PANEL OF SOLOMON ISLANDS

Case No: UDF 32 of 2009

IN THE MATTER of the Unfair Dismissal Act 1982

AND IN THE MATTER of a complaint of Unfair Dismissal

BETWEEN:

LYNDA WATE SENI
Complainant

AND:

ISLAND SUN NEWSPAPER
Respondent

Hearing: 20th July, 2010, Honiara.
Decision: 17th December, 2010.
Panel: Wickly Faga Deputy Chairman
Mary Ida Susurua Employee Member
Sika Manupangai Employer Member
Appearances: Donald Marahare, counsel for the Complainant
Wilson Rano, counsel for the Respondent

FINDING

The Complainant, had in the TDP 1 Form, claimed unfair dismissal on the grounds that;

1. Termination was issued without sufficient notification,

2. No opportunity was afforded to me to explain or defend my position,

3. Reasons for termination were unrelated to my performance or employment.

The Respondent admitted terminating the Complainant, and sought to resist the claim of unfair dismissal on the ground that, "there were issues raised by Robert Seni during the night regarding the Company, Linda was responsible for this misinformation."

Mathias Loji gave evidence in support of the Respondent's case. Mr. Loji stated in his sworn evidence that he is the Managing Director of Tradewind Investment Company Limited, a holding company of the Respondent Company (the Respondent). The Respondent, which produces the Island Sun Newspaper, is the business enterprise of Tradewind Investment Company Limited. Mr. Loji recalled that on the 29th April 2009, he wrote the Complainant's termination letter [Ex 1]. The relevant parts of the said letter stated as follows;

"It is with deep regret that I informed you that the Board of Island Sun Newspaper decided to terminate your employment with the Company as from 4.00pm today, 29th April, 2009"

The Complainant was dismissed as a result of her husband's behavior and his friends, where on late April 28th and early hours of April 29th 2009 while under the influence of liquor, did enter the premises of the Respondent and threatened its staff, demanded money and caused damage to the Respondent's property.

By letter dated 6th May 2009[Ex 2], the Complainant amongst other things offered explanations about the incident involving her husband, and then apologized for her husband's behavior. Then by letter dated 20th May 2009[Ex 3], Mr. Loji informed the Complainant that "the Board of Island Sun Newspaper has decided to uphold its decision made on the 29th April, 2009."

Mr. Loji further stated in his evidence that the Respondent was without any guidelines or policies during that time, so any issue had to be dealt with on a case by case basis. He further stated that the Board took the incident very seriously, resulting in the Complainant's dismissal. Cross-examined, Mr. Loji confirmed that the Complainant was dismissed as a result of her husband and other relatives' action on the late 28th April and early 29th April 2009.

Mr. Rano submitted on behalf of the Respondent that it does not matter whether the action was done by a third party. The fact that the Complainant's husband had admitted to entering the premises and damaging properties of the Respondent justifies the action taken against his wife, the Complainant. He further submitted that the Complainant was given an opportunity to give her side of the story, and the Board took time to consider her letter of 6th May 2009. It was therefore submitted that the Respondent had acted reasonably in terminating the Complainant.

The Complainant gave evidence by way of sworn statement. She confirmed as true her sworn statement filed on the 28th June 2010. She stated in her sworn statement that she took leave two weeks prior to 29th April 2009. Her leave was sanctioned by the Respondent purposely to allow her to sort out things between her husband, Robert Seni and one Richard Toke, who was also one of the directors of the Respondent, after rumours circulated that the Complainant had an affair with the said Mr. Toke. The Complainant further stated that she asked Mr. Toke to approach her husband and explain things to him. However, after two weeks, Mr. Toke failed to approach the Complainant's husband in an attempt to sort things out between them. The Complainant's husband became so frustrated and lost his temper. On the 29th April 2009, and on his own volition, the Complainant's husband and his realtives went to the Respondent's office and demanded compensetion from Mr. Toke, and caused damage to the Respondent's properties. Mr. Seni did confirm that he caused damage to the Respondent's properties after he heard stories about the Complainant's affair with Mr. Toke.

The Complainant was dismissed on the 29 April 2009. She was dismissed for the actions of her husband.

In his closing, Mr. Marahare submitted that the incident on the 29th April 2009 was not denied. That is Mr. Seni caused damage to the Respondent's properties. He was later charged by Police for his action. The Complainant was terminated as a result of her husband's action. It was submitted that the Complainant's termination was unfair. She was the employee of the Respondent at the time of her dismissal, and not her husband. So the extend to which her termination was based on the action of another person, is unfair.

For a dismissal to be fair, the dismissed person must have committed serious breaches of conduct against the Respondent or is incompetent in performing his or her duties. The Panel agrees with both counsels that the test is contained in section 4(1) (a) and (b) of the Unfair Dismissal Act, cap 77. The reason for dismissal must be substantial that justifies the dismissal of an employee holding his position at that time. According to evidence before the Panel, the reason for the Complainant's dismissal was the conduct of her husband. There was no evidence to show that she committed any serious misconduct that justifies her dismissal. It is therefore clear that the Complainant was not dismissed for her incompetency or any of her conduct as an employee, but on the basis of her husband's actions. That in the Panel's view is not a justifiable reason for dismissing the Complainant. It could have been a justifiable reason had she been involved. In the absence of any evidence to show that she was involved, or authorized the action, the Complainant's dismissal must be held to be unfair, and is entitled to be awarded compensation as sought. The Panel had in its discretion refuses any order for costs.

In awarding Compensation, the Panel takes into account that the Respondent had in fact had the opportunity to reconsider its decision when the Complainant requested it from the Board in her letter of 6th May 2009. The Panel also takes into account that the Complainant had been paid some money at the time of her termination or soon thereafter. In all the circumstances of this case, the Panel makes a fair and reasonable compensation as follows;

AWARD

1. Compensation BW X (52-17) = $761.00 X 35 = $26,635.00

The respondent unfairly dismissed the complainant and is to pay compensation to Linda Wate Seni in the sum of $26,635.00 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 17th of December 2010

On behalf of the Panel

DEPUTY CHAIRMAN/TDP