Te'ewe v Island Gold Ltd [2011] SBTDP 7; UDF 30 of 2009 (19 August 2011)

IN THE TRADE DISPUTES PANEL OF SOLOMON ISLANDS

Case No: UDF 30 of 2009

IN THE MATTER of the Unfair Dismissal Act 1982

AND IN THE MATTER of a complaint of Unfair Dismissal

BETWEEN:

JOHN TE'EWE
Complainant

AND:

ISLAND GOLD LIMITED
Respondent

Hearing: 19th April, 2011, Honiara.
Decision: 19th August, 2011.
Panel: Wickly Faga Deputy Chairman
Duddley Hoala Employee Member
John Adifaka Employer Member
Appearances: Selson Fafale, representative of the Complainant
Garry John Lett, representive of the Respondent

FINDING

The Respondent in this matter is a locally registered company. It operates Tavanipupu Resort, and buys alluvial gold.

The Complainant was employed by the Respondent as driver in October 2008. He was terminated in May 2009. He comes to the Panel under section 6(1) of the Unfair Dismissal Act, 1982[cap77]. He claimed that the reason for his termination was not substantial. In its response, the Respondent stated under clause 4(a) (b) of its TDP 2 that it dismissed the Complainant for driving under the influence of alcohol.

During a full hearing of this matter, the first respondent witness, Ms. Joanna Andrew, who was working as Clerk for the Respondent told Panel, that on the relevant date, at about 7pm, she and her other four colleagues, who were doing MYOB evening class at MASE Business Center in China Town finished class and were picked up for drop off by two cars. One of those cars was a taxi. Joanna and another work mate, Obed, followed the taxi while her other four colleagues followed the Complainant in the company car. She did not see the Complainant actually drink beer, but saw an opened can of beer inside the company car when she walked over for a brief chat with the Complainant before they took off. She told the Panel that she also smelled beer in the company car.

The second respondent witness, Mr. John Garry Lett, is the General Manager. He stated in his sworn evidence that he received a complaint from Ms. Hilda Tango that the Complainant was drinking and driving. According to Mr. Lett, drinking and driving is a serious matter because it endangers the lives of the Respondent's staff. While he acknowledge that "the Complainant is an exellent driver; drinking and driving are not!" If he warned him, he would be setting a very bad precedent so he made the decision to terminate him. The complainant was paid one month pay in lieu of notice.

The Complainant's case was that he had two cans of beer in his possession at the relevant time but denied that he was drinking beer. He told the Panel that his friends, Obed and Silion, who were driving past stopped by for a chat when the Complainant was parked next to Chung Wah School waiting for his colleagues to finish class. Obed had an opened can of beer. He left it in the company car, and was still in the car when the Complainant was driving home his colleagues. When he turned up the next morning, Mr. Lett told him that he had received a complaint from staff officers he was in charge of driving home. He then told the Complainant to go home and was not given an opportunity to respond to the allegation.

In the Panel's assesement of available evidence, the Respondent had disclosed no convincing facts to suggest that the Complainant was drinking and driving. Ms. Joanna Andrew did not see the Complainant drink but smelled beer in the car. The Respondent was relying on Ms. Hilda Tango's story who made a complaint the next morning that the Complainant was drinking and driving. It was however surprising that Ms. Tango was not called to testify before the Panel that the Complainant was drinking and driving at the relevant time. It would have been better to hear direct evidence from Ms. Hilda Tango, that she saw the Complainant drinking and driving at the relevant time. While the Panel agrees that drinking and driving is a serious offence, there is no sufficient evidence to establish that the Complainant was drinking and driving. It seems therefore that the Complainant's termination was based on mere allegation.

Accordingly and in all the circumstances of this case, the Complainant's dismissal was unfair. In awarding Compensation, the Panel takes into consideration that the Complainant was paid a month's wages in lieu of notice. The Panel asses a fair and reasonable compensation as follows;

AWARD
Basic Award = BW X 52= Compensation $225.00 x (52-25= 27) = $6,075.00

The respondent unfairly dismissed the complainant and is to pay compensation to John Te'ewe in the sum of $6,075.00 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 August 2011

On behalf of the Panel

DEPUTY CHAIRMAN/TDP