Workers Union of Solomon Islands v Harrison Daily Mart [2018] SBTDP 3; Case L9-6 of 2017 (10 May 2018)

IN THE TRADE DISPUTES PANEL
OF SOLOMON ISLANDS

Case No. L9/6/17

BETWEEN:

WORKERS UNION OF SOLOMON ISLANDS
Applicant

AND:

HARRISON DAILY MART
Respondent

Panel:

1. Willy Vaiyu - Deputy Chairman
2. Bryan Ulufia - Employer Representative
3. Edward Bamu - Employee Representative

Appearances:

1. Tony Kagovai, General Secretary, for the Applicant.
2. Willie Chou, for the Respondent.
   

Date of hearing: 9^th August 2017.

Date finding delivered: 10^th May 2018.

1. By a letter dated 28^th September 2016 a trade dispute was referred to the Trade Disputes Panel by Wency Ramo’oroa, Deputy Secretary of Workers Union of Solomon Islands (WUSI) between WUSI and Harrison Daily Mart pursuant to Section 4 of the Trade Disputes Act, Cap 75.
   

ISSUE

2. The dispute was cantered over the question,
   

“Whether Mrs. Rollanter Barividu was terminated by her employer as claimed by the Union or that she left employment by her own accord as claimed by the Respondent.”

FACTS

3. The Panel heard that Mrs. Barividu started working with Harrison Daily Mart on the 18/01/2015 as a Shop Assistant and was terminated on the 03/08/2015.

Before working at Harrison Daily Mart she worked also as a Shop Assistant at Jack Wong Store another shop owned by the Respondent.

She started work at Jack Wong Store in March 2014 and was moved to Harrison Daily Mart in January 2015.

4. The Panel heard that the reasons for termination was absenteeism which was denied by Mrs. Barividu.

She gave evidence that there was no warning letter and that there was no reason given for her termination as there was no termination letter.

5. The evidence of the Respondent the Panel heard that Mrs. Barividu was not terminated but was asked to take a leave without pay to settle family issues that have affected her attendance to work.
   
6. On returning to work early August 2015 she was told that her service with Harrison Daily Mart was no longer required.

She went and reported the matter to the Commissioner of Labour who wrote to the Respondent on the 05/08/2015 advising to do any of the following as they view the termination was unfair;

1. Reinstate Mrs. Barividu or,
2. One month pay in lieu of notice and pay,
   • - Outstanding holiday arrears,
   • - Outstanding wages.
     

7. In a reply to the Commissioner of Labours letter dated 10/08/2015 the Respondent stated Mrs. Barividu was not terminated but was asked to take leave without pay to enable her to settle her family matters before returning to work and must follow company policies.
   
8. Mrs. Barividu did not follow up with the Commissioner of Labour after that and went to report her case to the Workers Union of Solomon Islands (WUSI) on the 01/07/2016.
   
9. Evidences before the Panel also revealed that there were some dialogue between WUSI, Commissioner of Labour and the Respondent but they could not compromise on any settlement.

WUSI then referred the matter as a trade dispute to the Trade Disputes Panel on the 28/09/2016.

LAW

10. The issue in this case is whether Mrs. Barividu was dismissed and if so if the dismissal was fair or the dismissal was unfair or she left her job at her will as claimed by the Respondent.

Unfair dismissal cases are dealt with by the Panel under the Unfair Dismissal Act, Cap 77 the Panel must first make a finding if such a dismissal is a trade dispute under the Trade Disputes Act, Cap 75.

11. The meaning of trade dispute is found in the Schedule Section 1 of the Trade Disputes Act which states;
    

“A dispute between employees and employers, or between groups of employees, which is connected with one or more of the following matters-

(a) terms and conditions of employment or the physical conditions in which employees are required to work;

(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more employees;

(c) allocation of work as between employees or groups of employees;

(d) matters of discipline

(e) membership or non-membership of a trade union; and

(f) machinery for negotiation or consultation, and other procedures relating to any of the matters mentioned above, including the recognition of any trade union by an employer.”(Italic, Panel emphases)

It seemed that this case might fall under the meaning in (b),

“engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more employees”

12. Section 4 (1), (2) (a) (b) (c) of the Trade Disputes Act states,
    

(1) A party to a trade dispute may at any time refer the dispute to the Trade Disputes Panel.

(2) If it appears to the Minister

(a) that, in connection with a trade dispute, any industrial action is being or is likely to be taken; and

(b) that the action concerned has caused or would cause an interruption in the supply of goods or the provision of services; and

(c) that the interruption is or would be of such a nature or on such a scale as to be likely to affect the national economy or national security, or create public disorder, or endanger the supply of essential goods or services, he may refer the dispute to the Panel. (Italic, Panel emphases)

While Section 4 (1) gives the liberty to any party to refer a trade dispute sub-section (2) outlines the conditions for referrals.

13. The Panel is of the view in this case, fail to meet all the conditions set out in Section 4 (2) and not within the meaning of trade dispute in Schedule 1 (b) of the Trade disputes Act.
    
14. The Unfair Dismissal Act, Cap 77 Section 6 (3) states,
    

(3) A complaint under this section may not be made after the end of the period of three months beginning with the date of dismissal. (Italic, Panel emphases)

15. The Panel is of the view that the proper authority to deal with complaint of individual termination after the end of the period of three months from the date of termination are the formal Courts and not the Trade Disputes Panel.
    

ORDERS

1. This case fails to meet all the conditions set out in Section 4 (2) of the Trade Disputes Act, Cap 75 for the matter to be a trade dispute.
2. This case cannot be dealt with under the Unfair Dismissal Act, Cap 77 Section 6 because of laps of time, Unfair Dismissal Act, Cap 77 Section 6 (3).
3. Applicant to pay Panel fee of $1000.00 to be paid within 14 days from the date of this order.
   

APPEAL

16. Pursuant to Section 13 of the Trade Disputes Act an appeal shall lie to the High Court on any question of law arising from the Panels finding within 14 days from date of this finding.
    

On behalf on the Panel,

Willy Vaiyu.
Deputy Chairman