Mwaokeni v Solomon Islands National University [2019] SBTDP 2; UDF 76 of 2016 (15 July 2019)

IN THE TRADE DISPUTES PANEL

SOLOMON ISLANDS CASE NO. UDF 76/2016

BETWEEN:

Florah MWAOKENI

(COMPLAINANT)

AND:

Solomon Islands National University (Referred to hereafter as SINU)

(RESPONDENT)

Panel: 1. Willy Vaiyu – Deputy Chairman
2. Brain Ulufia - Employer Representative
3. Edward Bamu - Employee Representative

Appearances: Selson Fafale for the Complainant

Respondent – Barred

Date of Hearing: 14/08/2018
Date Finding Delivered: 15/07/2019

FINDING

1. By complaint lodged to the Panel (TDP Form 1) on 03/11/2016, the Complainant claimed she was unfairly dismissed by the Respondent on 12/08/2016. The grounds for her complaint were stated as follows:
   
   1. No substantial reasons to warrant the termination.
   2. No notice served prior to the termination.
      
2. The Respondent did not file notice of appearance despite being sent triplet copies of TDP Form 2 by TDP Secretary on 22/05/2017. A follow up letter by way of notice of appearance was again sent to the Respondent dated 25/08/2017 for the Respondent and the Complainant to appear before the Panel on the 27/09/2017 at 9:00am.

The Respondent was also advised to apply to the Panel for an extension of time to file TDP Form 2 under Rule 13(1) of the Trade Dispute Panel (Unfair Dismissal and Redundancy) Procedure Rules [Cap. 75] this was never done.

3. The Respondent has not been attending three conservative Panel sittings on 27/09/2017, 28/02/2018 and 15/05/2018 despite notices sent prior to these sittings. On the third nonappearance, 15/05/2018 the Complainant before the Panel applied for a bar for the Respondent not to participate in the arbitration proceeding under Rule 7(2) of the Trade Dispute Panel (Unfair Dismissal and Redundancy) Procedure Rules [Cap. 75] on grounds of nonattendance of three Panel sittings and was granted by the Panel.
   

Relevant facts

4. The Complainant was employed by the Respondent as a causal grounds worker. Her employment commences on 17/02/2014 and ceased on the 12/08/2016, a period of two and half years of employment.

On the day of her final day of service, 12/08/2016 the Respondent paid the Complainant her normal wages, one month pay and two years’ service totalling to four thousand five hundred and seventy eight dollars ($4,578.00).

5. The evidence of the Complainant was that she was handed the letter of notice dated 04/08/2016. Paragraph 1 of this letter states;
   

“This letter serves to officially inform and give notice that your engagement as causal ground employee with SINU will cease on the 12^th August 2016. Your last day of work as causal employee at SINU will be 12^th August 2016.”

Paragraph 2 of this same letter states;

“The University’s decision is based on the policy principle that all recruitments into SINU fulltime positions shall be made based on public advertisement of the positions. As a result of the decision made you are hereby by informed that 10 grounds fulltime positions are currently being advertised and will close on Friday 12 August. You are given the option to apply for these positions if you wish to become a fulltime employee. Please collect information pertaining to these positions from Human Resource Department and place in your application in good time.”

The evidence of the Complainant the Panel heard was that she applied for a position but was unsuccessful.

Law

6. Labour Act [Cap. 73] Section 2, Interpretations,
   

Causal employee or worker;

"means an employee or worker employed on a temporary or irregular basis at an hourly or daily rate of wages payable at the end of each day or on completion of a task or piece of work specified at the time of engagement which task is capable of being completed in a shorter period than the normal working week or the statutory working week whichever is the lesser.”

Worker;

“means any person who has entered into or works under a contract of service or apprenticeship with an employer whether by way of manual labour, clerical work or otherwise, whether the contract is expressed or implied, is oral or in writing, but does not include a domestic servant or seaman.”

The Complainant being a causal worker or not was not an issue however the Panel is of the view that this be addressed for clarity as this was mentioned in the Respondent’s letter of notice to cease employment of the Complainant. In her submission the Complainant submitted that she was terminated because she was not properly recruited and her job will be advertised for proper recruitment process.

The Panel is of the view that pursuant to Section 2 of Labour Act, “Interpretations” the Complainant is a Worker and not a Causal employee as cited above and was under an oral and implied contract.

7. Unfair Dismissal Act [Cap 77] Section 4 “Fair and Unfair dismissal” which states;
   

“4. (1) An employee who is dismissed is not unfairly dismissed if;

(a) he is dismissed for a substantial reason of a kind such as to justify the dismissal of an employee holding his position; and

(b) in all the circumstances, the employer acted reasonably in treating that reason as sufficient for dismissing the employee.

(2) An employee who is dismissed is not unfairly dismissed if he is dismissed because of redundancy.

(3) An employee who is dismissed is not unfairly dismissed if the reason for his dismissal is that he could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under written law.

(4) In deciding whether the dismissal of an employee was fair or unfair, there may be taken into consideration the period of time for which he has worked in the employer's undertaking; but an employee who is dismissed is not unfairly dismissed if-

(a) he is dismissed within the period of 26 weeks beginning when his employment in the employer's undertaking began; and

(b) before his dismissal he has agreed in writing to exclude any claim for unfair dismissal arising within that period.” . (Italic Panel emphases)

8. The meaning of Dismiss is provided for in Section 3 of Unfair Dismissal Act [Cap 77] which states;

“For the purposes of this Act, an employee is dismissed by his employer if and only if;

(a) the contract under which he is employed is terminated by the employer (by notice or otherwise);

(b) the contract under which he is employed is a fixed term contract and the term expires without being renewed under the same contract; or

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which, by reason of the employer's conduct, the employee is entitled to terminate it without notice. (Bold, underline and Italic Panel emphases)

9. Was there any substantial reason to terminate the Complainant?

The reason given by the Respondent for the termination of the Complainant was found in the letter dated 04/08/2016 cited above at paragraph 5 which was stated at paragraph 2 of the letter states;

“The University’s decision is based on the policy principle that all recruitments into SINU fulltime positions shall be made based on public advertisement of the positions.”

Was there a notice prior to the termination of the Complainants employment?

The employment of the Complainant was terminated on the 12/08/2016 and a prior notice was served on the Complainant dated 04/08/2016 therefore there was prior notice before the termination of the employment of the Complainant.

10. The Panel is of the view that the complainants termination was therefore lawful in all circumstances by virtue of the Unfair Dismissal Act [Cap 77] Section 4 “Fair and Unfair dismissal” clause 3 which states,
    

“(3) An employee who is dismissed is not unfairly dismissed if the reason for his dismissal is that he could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under written law.”

It is the University’s policy that “all recruitments into SINU fulltime positions shall be made based on public advertisement of the positions.”

11. The Panel has noted that the Complainant was not a causal worker by the definition of the Labour Act [Cap. 73] therefore on the day of her final service with her employer she should have been paid with the following entitlements;
    
    1. One month in lieu notice,
    2. Holiday pay,
    3. Holiday or leave passage including spouse and children of 18 years or under 18 years.
    4. Service of employment.

The Panel has noted that the following entitlement has been settled by the Respondent;

1. One month in lieu notice,
2. Service of employment.

The following are outstanding;

1. Holiday pay,
2. Leave passage.

Order

12. The Panel makes the following Orders;
    
    1. Section 3(a) and Section 4(3) of Unfair Dismissal Act [Cap 77] is applicable in this case therefore the termination was fair.
       
    2. The Complainant was not a causal worker therefore she was entitled to be paid the following entitlements after her termination;
       
       1. One month in lieu notice,
       2. Holiday pay,
       3. Holiday or leave passage including spouse and children of 18 years or under 18 years.
       4. Service of employment.
          
    100. The Respondent to pay the Complainant the outstanding entitlements within 14 days in receipt of this Order;
         
         1. Holiday pay,
         2. Leave passage.
            
    4. Pursuant to Section 11 of the Trade Disputes Act 1981as read with Section 11(2) of the Unfair Dismissal Act [Cap 77], the Panel orders the Respondent to pay Panel expenses in the sum of $1,000.00 to the Ministry of Commerce, Industry Labour & Immigration within 14 days of receipt of this Order.
       

Appeal

13. There is a right of appeal within 30 days by any aggrieved party to the High Court on question of law only pursuant to Section 13 of the Trade Disputes Act 1981as read with Section 11(1) of the Unfair Dismissal Act [Cap 77].
    

On behalf of the Panel,

Willy Vaiyu.
Deputy Chairman
Trade Dispute Panel