Nadapoli v Rapid Security Service [2021] SBTDP 4; UDF 50 of 2018 (27 September 2021)

IN THE TRADE DISPUTES PANEL SOLOMON ISLANDS

CASE NO. UDF: 50/2018

BETWEEN:

PHILIP NADAPOLI

(Complainant)

AND:

RAPID SECURITY SERVICE
(Respondent)

Panel: 1. Willy Vaiyu - Deputy Chairman
2. Eric Matangi - Employer Representative
3. Rose Bala’a - Employee Representative

Appearances: Moffet Berry Kepulu for the Complainant

Respondent – Barred

Date of Hearing: 21/04/2021
Date Finding Delivered: 27/09/2021

FINDING

1. Mr. Philip Nadapoli (referred to as Complainant) was formerly employed by Rapid Security Service (referred to as the Respondent), a security firm operating in Honiara City.
   
2. By complaints lodged to the Panel (TDP Form 1) on 01/10/2018, the Complainant claimed he was terminated by the Respondent on 02/09/2018. The grounds for his complaint were stated as follows:
   
   1. Unfair dismissal.
   2. No substantial reasons for termination.
      
3. The Respondent did not file notice of appearance despite being sent triplet copies of TDP Form 2 by TDP Secretary on 01/04/2019. A follow up letter by way of notice of appearance was again sent to the Respondent dated 20/05/2019 for the Respondent and the Complainant to appear before the Panel on the 26/06/2019 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.

4. The Respondent has not been attending four (4) conservative Panel sittings on 26/06/2019, 11/11/2020, 03/03/2021 and 17/03/2021 despite notices sent prior to these sittings. On the fourth nonappearance 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 four (4) Panel sittings and was granted by the Panel.
   

Relevant facts

5. The Complainant, Mr. Nadapoli was employed by the Respondent as a Security manning the office building housing the Ministry of Agriculture adjacent to the Solomon Postal and Telekom office buildings.
   
6. His employment commenced on 28/11/2017 and ceased on the 02/09/2018 that is about 10 months. The Complainant submitted payslip envelops showing non-payment or deduction of NPF contributions.

He now comes to the Panel to seek redress for unfair dismissal.

Law

7. Unfair Dismissal Act [Cap 77] Section 4(1) (a)(b) “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.

8. The Panel in determining whether the termination was fair or unfair these two questions must be asked and answered;
   

Question 1

1. Was the reason for dismissing the Complainant substantial and of a kind justifying a

dismissal of an employee holding the Complainant's position?

In answering the first question the Complainant submitted to the Panel that his termination was conveyed to him by the Managing Director of Rapid Security Service, Mr. Frank Bonagi through mobile phone on the evening of 02/09/2018 as he resumes his duty that evening.

The Complainant was informed to stop work and to leave the premises immediately.

He then left as ordered.

The Complainant further submitted that he made few attempt for the Respondent to give him explanation for his termination but was ignored.

There was no reason given for the termination on the evidence.

Panel is of the view that there was no substantial reason of a kind justifying the

dismissal of the Complainant or any reason justifying the dismissal of an employee holding the Complainant's position.

It was also submitted that there was no verbal or written warning before the termination.

Question 2

2. Did the employer acted reasonably in treating that reason as sufficient in terminating the complainant?
   

The Panel answers the second question in a negative form.

The Panel noted that there was never a warning verbal or written given to the Complainant.

Natural Justice

9. The principles of natural justice comprise of the following two limbs:
   
   1. The rule against bias (nemo iudex in causa sua – no one should be a judge in his/her own cause);
      
   2. The right to a fair hearing (audi alteram partem – hear the other side).
      
10. This calls for fairness and therefore in all circumstances the Respondent must act fairly, in good faith and without bias afford the Complainant the opportunity to adequately state his case. This also means an opportunity and adequate time to be informed of the allegations and to reply to the allegations.
    
11. The Panel have noted that there was no time given or have been offered by the Respondent for the Complainant to explain whatsoever that has resulted in the Complainants summary dismissal.

There no evidence before the Panel to substantiate a summary dismissal.

12. The Panel is of the view that the Respondent never complied with the rule of natural justice in those circumstances.
    
13. The Panel finds that the Respondent did not act reasonably in not giving any reason sufficient in terminating the Complainant and rule of natural justice was not observed therefore the Panel finds the termination to be unfair in those circumstances.
    

AWARD

14. In awarding compensation, the Panel notes that the Complainant had worked for the Respondent for a period of 10 months. The Complainant has not secured any employment since termination on the 02/09/2018.
    

The Panel therefore awards;

1. Four months' salary as compensation to the Complainant for loss of employment,
2. Payment in lieu of notice,
3. Repatriation costs,
4. 7% NFP
   

These awards are calculated as follows;

(a) Four months’ salary;

Monthly salary - $1,500.00

Hourly rate – 8hr/$1,504 - $9.40

8 hours worked per day x $8 - $75.20

Salary per week, 5 days x $75.20 - $376.00

4 weeks in a month (5 days/week), 20days x $376.00 - $1504.00

$1504 x 4 months - $6,016.00

(b) Payment in lieu of notice;

20 days x $376.00 - $1,504.00

(c) Repatriation Cost; - $2,000.00

(d) 7% NPF

10 months salary x $1504 - $15,040.00

$15,040 x 7% - $1,052.80

4 months salary x $1504 - $6,016.00

$6,016 x 7% - $421.12

Total pecuniary award;

1. 4 months salary - $6,016.00
2. Payment in lieu of notice - $1,504.00
3. Repatriation Cost - $2,000.00
4. 7% NPF ($1,052.80 + $421.12) - $1,473.92
   

Total - $10,993.92

15. The Panel therefore considers the sum of $10,993.92 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

16. The Panel makes the following Orders;
    
    1. The Respondent is to pay the sum of $10,993.92 as compensation to the Complainant for unfair dismissal within 14 days of this Order.
       
    2. The Respondent to pay Panel expenses in the sum of $1,000.00 to the Ministry of Commerce, Industry Labour & Immigration pursuant to Section 11(2) of the Unfair Dismissal Act [Cap 77].
       

Appeal

17. 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 1981 [Cap 75] as read with Section 11(1) of the Unfair Dismissal Act [Cap 77].
    

On behalf of the Panel,

Willy Vaiyu.
Deputy Chairman
Trade Dispute Panel