Turanga v Solomon Islands National University [2019] SBTDP 3; UDF 29 of 2015 (10 December 2019)

IN THE TRADE DISPUTES PANEL

SOLOMON ISLANDS

CASE NO. UDF 29/2015

BETWEEN:

Jacqueline Riotako TURANGA

(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: Berry Kepulu for the Complainant

Respondent – Barred

Date of Hearing: 27/09/2017
Date Finding Delivered: 10/12/2019

FINDING

1. By complaint lodged to the Panel (TDP Form 1) on 20/03/2015, the Complainant claimed she was unfairly dismissed by the Respondent. The grounds for her complaint were stated as follows:
   
   1. Constructive 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 28/04/2015. A follow up letter by way of notice of appearance was again sent to the Respondent dated 21/10/2015 for the Respondent and the Complainant to appear before the Panel on the 11/11/2015 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 11/11/2015, 30/03/2016 and 03/05/2016 despite notices sent prior to these sittings. On the third nonappearance, 03/05/2016 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 not entering Form B and nonattendance of three conservative Panel sittings the application was granted by the Panel.
   

Relevant facts

4. The Complainant was employed by the Respondent as Matron for Panatina Campus. She entered into a 3 years contract with the Respondent commencing on or about 29^th April 2009 (Exhibit 1) which expires on or before the 19/05/2012. The Complainants contract of employment was renewed for further 3 years (Exhibit 2) commencing on the 19/05/2012 and expires on the 19/05/2015 (Exhibit 2). The Complainant signed the renewed contract on the 15/8/2012. She was employed by the Respondent for 5 years and 8 months.
   
5. The Panel heard that during the course of her employment the Complainant did her study with the University of the South Pacific (USP) at the Solomon Islands, Honiara Campus, doing units for a Bachelor’s Degree. The Panel heard that she was self-sponsored doing the units towards her Bachelor’s Degree. The Respondent was very supportive and also paid some of her units’ fees.
   
6. Towards the end of 2013 the Complainant requested the Respondent in a letter for her to be granted study leave to complete her Bachelor’s Degree, the request was refused by the Respondent (Exhibit 4).
   
7. The Complainant was awarded a Solomon Islands’ Government Scholarship (Exhibit 5) dated 20/12/2013 and then she appealed the decision to refuse her study leave. The appeal was again refused in a letter (Exhibit 6) dated 15/01/2014). The reasons given for the refusal was that, the study she was pursuing was not relevant to the role she currently play at the University (SINU) and that in 2014 priorities were on staff pursuing Masters and Doctoral degrees.
   
8. The Complainant then specifically request for 10 months of Unpaid Leave commencing March 2014 in a letter (Exhibit 7) dated 12/02/2014. The period of 10 months would basically laps in December 2014. There was no immediate reply to the request for the 10 months unpaid leave, however the Complainant in her evidence before the Panel stated her salary was ceased after the request for Unpaid Leave.
   
9. In another letter (Exhibit 8) the Complainant wrote to the Respondent dated 19/08/2014 (written from USP, Laucala Campus, Suva, Fiji) in the letter the Complainant opt to make a new or another request for her to be awarded study leave citing from her knowledge about 4 other SINU staff members who the Respondent awarded study leave and were on full salary in 2014, and who were either pursuing Bachelor’s Degree or Postgrad and were or were not pursuing studies relevant to their current role at SINU, contradictory to the Respondents letter (Exhibit 6) for refusing the Complainants appeal for study leave.
   
10. On the 02/12/2014 the Complainant formally requested (Exhibit 9) the Respondent for her to resume her duty after the 10 months of Unpaid Leave. The respondent replied (Exhibit 10) conveying a decision by the SINU Staff Development Committee (SDC) reached in its meeting on the 10/12/2014, that the Complainant update the Committee of her study progress and to confirm if she has completed her study, if not she would have to resign as she would have used up her entitlement for Unpaid Leave.
    
11. The Panel noted that the Respondents’ letter (Exhibit 10) dated 15/12/2014 was also the reply to the Complainants request for Unpaid Leave (Exhibit 7) date 12/02/2014. The Panel also noted that while the Complainant made a formal request for the Unpaid Leave there was no copy of any formal letter of reply before the Panel from the Respondent whether or not the Unpaid Leave was approved.
    
12. Exhibit 11 is a letter dated 19/01/2015 from the Complainant in reply to the Respondents letter (Exhibit 10) which again the Complainant repeated the accusation she made against the Respondent that the Respondents was awarding Study Leave to some of its staff members and why her application for Study Leave was not approved and that her case was same as the other Staff members being granted Study leave and she said this was bias against her. The Panel noted that the Respondent made no explanations of response to those accusations or whether or not they were true.
    
13. The Respondent did not respond to the Complainants’ letter of 19/01/2015 (Exhibit 11) and on the 20/03/2015 the Complainant registered her complaint with the Trade Disputes Panel.
    
14. The Complainant in her evidence stated that during the course of her study and work she made appointments to see the Respondences Human Resource Manager but they was no response the office.
    
15. At the Panels full hearing of the matter the Complainant gave evidence that she was not informed, formal or verbal, that she was terminated by the Respondent, therefore no copy of letter of her termination was made available to the Panel. Pursuant to TDP (Unfair Dismissal & Redundancy)Procedure Rules, Rule 8(1)(c) as read with TDP Rules, Rule 7(2)(c) on the 20/11/2018 the Panel wrote (Exhibit 12) to the Respondent to confirm the employment status of the Complainant.
    
16. In response (Exhibit 13) dated 31/01/2019 the Respondent stated that the Complainant failed to provide an update whether or not she has completed her studies as required by the Staff Development Committee (SDC) and therefore her situation was considered as “self-termination” as staff terms and conditions only allow for one year of Unpaid Leave.
    

The “self-termination” as ground for termination was never communicated to the Complainant only upon the Respondents reply to the Panels letter of 20/11/2018 copied to her.

17. The Respondent make no mention about the allegations made by the Complainant that the Respondent was bias against her regarding awarding of Study Leave to its staff despite being informed twice in the Complainants letters dated 19/8/2014 (Exhibit 8) and 19/01/2015 (Exhibit 11).
    

Law

18. The Panel considers the claims for unfair dismissals under the Unfair Dismissal Act [Cap 77] Section 4 “Fair and Unfair dismissal” as a guiding principle 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. (Italic Panel emphases).

19. The Respondents claimed the Complainant was self-terminated, implying that the Complainant terminated her employment and not the Respondent, let alone absent from duty. Was the Complainant absent from duty? No, she intend to resume duty and was denied by the Respondent she stated in her evidence.
    
20. The reasons were that the Complainant did not respond as directed by the SDC, that is to update SDC if she has completed her study or will still continue in 2015. The SIG Scholarship award to the Complainant was for two years 2014 and 2015.

The Complainant has taken 10 months of Unpaid Leave in 2014 and was not entitled for Unpaid Leave in 2015 and must resign from her employment.

21. Are these substantial reasons of kind such as to justify the dismissal of the Complainant?
    
22. The Complainant could not resume duty as per her request (Exhibit 9). The Panel is of the view that the decision by the SDC for the Complainant to update them with status of her study is absurd, irrelevant and inconsistent to her request to resume her duty.

The Complainants’ request to resume duty was consistent with the initial reason why the Respondent refuse to grant her Study Leave therefore resuming of her duty was in the best interest of the Respondent.

The Complainant was specifically requesting to resume duty not another unpaid leave.

23. Has the Respondent in all the circumstances acted reasonably in treating that reason as sufficient for dismissing the Complainant?
    
24. The Panel noted that the Complainant when requesting at the first instance for study leave was refused by SDC (Exhibit 4) and on appeal was again refused by the same body, SDC (Exhibit 6) for the same reason, relevancy of the program of study she was pursuing as opposed to her current job as the Matron of SINU.
    
25. The Panel also noted that the Complainant has a fixed term contract of employment (Exhibit 2) with the Respondent expires on the 19/05/2015.
    
26. The Panel is of the view that there is no natural justice in dealing with the Complainants case in relations to formal reply to her correspondences;
    

Why there was no formal reply or approval of unpaid leave?

Why there was no reply on the Complainants on allegations of unfair granting of study leave by the Respondent to its staff members?

Why there were no communications with the Complainant, formal, face to face or phone contact when she did not respond to SDC on status of her study?

Why the Complainant was not informed immediately that she has terminated herself or a notice informing her of that decision?

27. The Panel is also of the view that the reason for the termination, self-termination, was not substantial justifying a termination of an employee holding the Complainants position. The Respondent did not act reasonably in treating the reason as sufficient in terminating the Complainant and therefore the Panel found the termination to be unfair in that circumstance.
    
28. The Panel finds the Complainant to be truthful and competence witness.
    

AWARD

29. In awarding compensation, the Panel notes that the Complainant had worked for the Respondent for a period of 5 years and 8 months and is currently engaged by the Respondent as part-time tutor.
    

The Panel therefore awards;

1. Pay the Complainants normal salary from the date (02/12/2014) of the letter she requested resuming of duty to the end of her employment contract, 19/05/2015.
   
2. Payment of one month in lieu of notice,
   
3. Pay Holiday based on pro-rata,
   
4. Pay Repatriation costs.
   

These awards are calculated as follows;

(a) 11 fortnights salary;

Fortnight salary (Exhibit 3) - $1,769.23

$1,769.23 x 11 fortnights - $19,461.53

(b) Payment of one month in lieu of notice;

One month notice pay - $3,538.46

(c) Holiday based on pro-rata;

30 days x daily rate

30 x $126.27 - $3,788.10

(d) Repatriation Cost; - $2,500.00

(e) Service rendered - withheld

(f) Loss of employment - withheld

Total pecuniary awarded; - $29,288.09

30. The Panel therefore considers the sum of $29,288.09 as fair and reasonable in all the circumstances, taking account the conduct of the employer and the Complainant both before and after the date of termination.
    

ORDERS

31. The Panel makes the following Orders;
    
    1. The Respondent is to pay the sum of twenty nine thousand two hundred and eighty eight dollars and nine cents ($29,288.09) as compensation to the Complainant for unfair dismissal within 14 days of this Order.
       
    2. No order for Panel expenses.
       
    3. No order for payment of service the Complainant rendered.
       
    4. No order for payment of loss of employment
       

APPEAL

32. 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 7(3) of the Unfair Dismissal Act [Cap 77].
    

On behalf of the Panel,

Willy Vaiyu.
Deputy Chairman
Trade Dispute Panel