Aopuru v Honiara Hotel [2022] SBTDP 1; UDF 30 of 2020 (16 June 2022)

IN THE TRADE DISPUTES PANEL
SOLOMON ISLANDS

CASE NO. UDF 30/2020

BETWEEN:

Moses Aopuru
(COMPLAINANT)

AND:

Honiara Hotel
(RESPONDENT)

Panel:	1. Willy Vaiyu (Deputy Chairman)
	2. Elsa Maina (Employer representative)
	3. Edward Bamu (Employee representative)
Appearance:	4. Michael Pitakaka for complainants 5. Donald Marahare for Respondent

Date of hearing: 21/09/2021

Date of Ruling: 16/06/2022

FINDING

1. Moses Aopuru, herein referred to as the Complainant, lodged with the Panel (TDP Form 1) on 08/09/2020, alleging he was unfairly dismissed by Honiara Hotel, herein referred to as the Respondent, on 20/08/2020. The grounds for his complaint were stated as follows:
   
   1. Unfair Dismissal,
      
   2. Breach of Section 10 of the Trade Disputes Panel Act.
      

There were in fact 7 grounds stated by the Complainant however these can be grouped under the 2 grounds stated above.

Relevant Facts

2. The Complainant was employed by the Respondent as an Accounts Receivable or Payroll Clark. He stated that his employment began on 18/09/1997. He did not state whether there was an employment contract signed with the Respondent. He has been working for the Respondent for 23 years and 11 months.
   
3. There were two other issues that arose that related to both the Complainant and the Respondent, these issues were the referral of a trade dispute to the Panel by Workers Union of Solomon Islands (WUSI) on the issue of recognition of the Union by the Respondent and redundancy of the Complainant by the Respondent.

The registration of the Complainants unfair dismissal with the Trade Disputes Panel (TDP) come between these two issues.

4. The following chronological order of events has transpired between the Complainant and the Respondent leading to dismissal of the Complainant;
   

2020

June – Cease fuel and mobile top up the Respondent usually gave the Complainant,

24^th June – Respondent wrote to Commissioner of Labour (COL) for advise on possible unpaid leave and redundancy on employees,

6^th July – Reply from COL to the Respondent,

14^th July – WUSI referral of a trade dispute to TDP on the issue of recognition,

14^th July – Letter from Secretary TDP to the Respondent informing parties of effect of Section 10 of TDP Act [Cap. 75]1987

24^th July – WUSI, proposed draft collective agreement to the Respondent,

4^th August – Letter to Respondent from WUSI giving options to Respondent,

20^th August – Respondents’ letter of 3 months’ unpaid leave to the Complainant,

20^th August – Respondent informed by WUSI of breaching Section 10 of TDP Act [Cap. 75]1987,

21^st August – the Complainants office lock changed by the Respondent,

21^st August – Respondent replied by letter to WUSI,

8^th September – Complainant lodged TDP F1,

18^th September – Respondent letter to COL for the Complainant to be redundant,

22^nd September – Letter from COL approved Complainants redundancy,

30^th September – Redundancy letter from Respondent to Complainant, effective 01^st /10/2020,

6^th October – Complainant received redundancy letter,

8^th October – Letter of proposed settlement from WUSI to the Respondent,

23^rd October – TDP F2 filed by the Respondent,

2^nd November – TDP held secret ballot for employees of the Respondent,

2021

2^nd March 2021 – TDP grant recognition to WUSI following the result of the secret ballot,

21^st September – Full hearing before the Panel of this matter.

Both parties knew of the above events.

5. During the full hearing of the matter the Complainant elected to call 4 witnesses including himself and the Respondent called 2 witnesses. After taking oath all witness from both parties confirmed to their written sworn statements filed and submitted as evidence and were all cross examined and re-examined.
   
6. At the closing submissions from parties Panel agreed to consider issues pertained to this matter as the application of the Evidence Act 2009 Section 136 & 137 (discretion of Court to exclude evidence) in the Sworn State of the Respondent filed on 07/04/2021 paragraphs 18, 19 and 20 and Sworn State by the Complainant filed on the 28/07/2021 paragraph 19, has been excluded and agreed by both Counsels parties.
   
7. The following issues were also evident in both Counsels closing submissions and will be discussed in detail in this ruling;
   1. Whether the Complainant was dismissed on 20/08/2020,
      
   2. Whether the recognition issue referred to TDP on the 14/07/2020 was a trade dispute under the TDP Act so that Section 10 of that Act can be invoked,
      
   3. Whether the Respondent breached Section 10 of TDP Act in dismissing the complainant,
      
   4. Whether the Panel has jurisdiction to hear redundancy case as it was not an issue the Complainant was complaining of,
      
   5. Whether the TDP Order of 2/3/2021 has effect on termination of the Complainant.

8. The Panel will first deal with issue (iv).

Whether the Panel has jurisdiction to hear redundancy case as it was not an issue the Complainant was complaining of,

The High Court of Solomon Islands, in the case of Solomon Taiyo Ltd v SI National Union of Workers[1] has dealt with a similar issue before where the Panel deals with a trade dispute that was referred to it and the trade dispute has connection with employees who were terminated and the question whether the Panel has jurisdiction to hear unfair dismissal of those that were terminated together with trade dispute that was referred to it. The High Court, Ward CJ, as he was then stated at page 9 of the Court’s ruling;

“The purpose of both Acts (sic TDP Act [Cap. 75]1987 and Unfair Dismissal Act [Cap.77] 1983) is to provide a more flexible and informal procedure of inquiring into disputes of this nature than would be provided in the normal courts of law. The Trade Disputes Panel was set up with this in mind. Similarly, the flexibility given to the Panel in relation to procedure aims to achieve the same purpose.

Whilst they are, of course, bound by the rules, the Panel must be allowed considerable discretion as to the best manner of inquiring into a dispute especially where the parties are not represented by lawyers. This court will not lightly interfere with such decision. In this case they should, strictly, have heard the trade dispute before the claim for unfair dismissal but the procedure they adopted was manifestly sensible, clearly stated and I do not accept (despite the magnanimous concern for the respondents shown in ground 3) that either party was prejudiced in any way.”

9. With that ruling of the High Court the Panel has jurisdiction to hear and to make rulings on the redundancy made by the Respondent on the Complainant together with the unfair dismissal claim by the Complainant against the Respondent. Counsel for the Respondent emanated on this point and assisted the Panel with few cases laws.
   
10. The redundancy exercise carried out by the Respondent affecting the Complainant came when the trade dispute centered on the issue of recognition has already been referred to the TDP and the Respondent was already being informed of the effect of Section 10. The letter by the TDP Secretary (Ag) states;
    

“This letter serves as a notification to you of the referral, and that Section 10 of the Trade Disputes Act now applies to the dispute and the parties to it.”

There is no evidence before the Panel to state that the COL was informed of the trade dispute that was referred to TDP.

11. COL must sanction any redundancy exercise by any employer by virtue of Section 21 of the Employment Act [Cap. 72] 1982 after a 28 days’ notice has been given to COL.

Section 21 of the Employment Act [Cap. 72] 1982 must be read together with Section 4 of the Employment Act [Cap.72] 1982 to effect COLs sanction for any redundancy exercise by any employer this is because Section 4(1) gives COL criteria’s for his approval of any redundancy exercise. Section 4 also gives the definition of dismissal because of redundancy.

12. Section 4; Meaning of dismissal "because of redundancy"

“(1) For the purposes of this Act, when an employee is dismissed his dismissal is to be taken to be because of redundancy if it is attributable wholly or mainly to-

(a) the fact that his employer has ceased, or intends to cease-

• (i) to carry on the business for the purposes of which the employee was employed by him; or
  
• (ii) to carry on that business in the place where the employee was so employed; or
  

(b) the fact that the requirements of that business-

• (i) for employees to carry out work of a particular kind; or
  
• (ii) for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish. (italic, and underline, Panel emphasis)
  

13. In any notice of redundancy exercise forwarded to COL for his sanction it is a statutory requirement that the criteria’s set out in Section 4(1) of the Employment Act must be considered by COL when giving his approval. COL must not approve any redundancy exercise which does not meet criteria’s set out in Section 4(1).
    
14. There is no evidence before the Panel that criteria’s set out in Section 4(1) was met by the Respondent when the notice of redundancy was forwarded to COL so the questions to ask when considering redundancy are;
    
    1. Has the Respondent ceased or intend to cease to carry on the business for the purposes of which the employee(Complaint) was employed by him (Respondent)?
       
    2. Has the Respondent ceased or intend to cease to carry on that business in the place (Honiara Hotel) where the employee (Complainant) was so employed?
       
    3. Have the requirements of that business (Hotel) for the employee (Complainant) to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish? (That is to say, the job that the Hotel required the Complainant to do “Accounts Receivable or Payroll Clark” is no longer required or the job is near completion)
       
    4. Have the requirements of that business (Hotel) for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish? (That is to say, Accounts Receivable or Payroll Clark is no longer needed in Honiara Hotel)
       
15. It is a general knowledge that Honiara Hotel still exist as a Hotel doing Hotel business. One of the Respondents witness, Diana Yates, was asked during her examination in chief if the position held by the Complainant was abolished, her answer was, “the position is now shared.” When cross examined by the Panel on this same question her answer was, “the position is abolished but the work is still there”.
    
16. Therefore, it is the business that must cease or intend to cease or the work, the job (not the position or post) has been completed or have ceased or diminished or is expected to cease or diminish to effect any redundancy. Only in this situation, not low in cash nor pandemic or position or post, the employer can give notice of redundancy to COL and expects COLs approval. Low cash or pandemic must cause intention to cease or closure of business to be a reason for redundancy and not abolition of position or post. There is no evidence before the Panel to show intention to cease or closure of business in the circumstance of this case.
    
17. The Panel concludes that the answers to the 4 questions in paragraph 14 above must be answered in the negative form and therefore, it is the Panels view that the redundancy exercise should never be approved by COL and therefore void by virtue of Section 4(1) of the Employment Act.
    
18. The Panel will deal next with issue (ii),

Whether the recognition issue referred to TDP on the 14/07/2020 was a trade dispute under the TDP Act so that Section 10 can be invoked,

The definition of recognition is stated in TDP Act, Section 5(1) states as follows;

“(1) In this Act, "recognition issue" means an issue arising from a request by a trade union for recognition by an employer, including (where recognition is already given to some extent) a request for further recognition.”

19. The question whether “recognition issue” is a “trade dispute” so that Section 10 is invoked in the circumstances of this case,
    

Section 10(1)b &(2)c of TDP Act states;
Restriction on industrial action where dispute is before Panel

(1) At any time when a trade dispute has been referred to the Trade Disputes Panel and the Panel have neither -

(b) made an award in the dispute, no person shall do any of the things mentioned in subsection (2).

(2) Those things are,

(c) terminating (for whatever reason) the contract of employment of any employee whose conditions of service are in issue in the dispute.

(italic, bold and underline, Panel emphasis)

20. The Panel refers to the TDP Act for the definition of “trade dispute.” The definition appears in Section 1 of Schedule of glossary to the Act and as the following terms (a) – (f); the definition applicable are (e) and (f),

“Trade Dispute” is defined as, “A dispute between employees and employers, or between groups of employees, which is connected with one or more of the following matters,

(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, bold and underline, Panel emphasis)

21. With the above definitions the Panel has answered issues in (ii), (iii) and (v) above in paragraph 7, that the recognition issue referred to TDP on the 14/07/2020 was a trade dispute under the TDP Act, therefore Section 10 must be invoked, and correctly communicated to the Respondent and WUSI by TDP Secretary in a letter date 14/07/2020.
    
22. The effect of the referral and acceptance by the TDP Secretary was that any dismissal of any employee by the Respondent on or after 14/07/2020 when the trade dispute (the recognition issue) referred to TDP by WUSI has not been settled is in breach of Section 10. The TDP Order of 2/3/2021is a continual affirmation of the Secretary’s letter of 14/07/2020 to the parties involved and also settle the recognition issue.
    
23. The Panel turns now to issue (i),

Whether the Complainant was dismissed on 20/08/2020?

The Complainant stated in TDP F1 (the complainant form) that he was terminated by the Respondent on the 20/08/2020. In the Respondents reply, TDP F2 (notice of appearance) the Respondent stated that the Complainant was terminated on the 20/08/2020 and the reason for the dismissal was because of redundancy. This date is inconsistent with the effective date of the Complainants redundancy which was the 01^st /10/2020.

24. The Panel notes that the letter informing the Complainant of the 3 months unpaid leave was dated 20/08/2020 and there was no other notice in that letter or another stating the Complainants termination. The letter from the Respondent informing the Complainant of his dismissal on grounds of redundancy was dated 30/09/2020 and the redundancy was effective on the 01/10/2020. In another letter from the Respondent to WUSI date 21/08/2020, WUSI was informed that the Complainant was not terminated.
    
25. There is evidence before the Panel that the Complainant was not terminated on the 20/08/2020 of which the Respondent also denies. Having said that the Panel notes that the unpaid leave or the redundancy of the Complainant were breaches of Section 10 of the TDP Act.
    
26. The 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 and that the Respondent had not acted reasonably in treating that reason as sufficient in making the redundant of the Complainant, therefore the Panel finds the termination (redundancy) to be unfair in those circumstances (Section 4 (1) (a) & (b) of the Unfair Dismissal Act [Cap.77] 1983).
    

Award

27. In awarding compensation, the Panel notes that the Complainant had worked for the Respondent for a period of 18 years and six months. The Complainant has not secured any employment since termination on the 01/10/2020.
    

The Panel therefore awards;

1. Five months salary as compensation to the Complainant for loss of employment,
2. Payment in lieu of notice,
3. Repatriation costs,
4. 7% NFP for the 5 months salary.
   

These awards are calculated as follows;

(a) Five months’ salary;

Fortnight salary - $1,980.00

Monthly salary - $3,960.00
5-months salary x $3,960.00 - $19,800.00

(b) Payment in lieu of notice; - $3,960.00

(c) Repatriation Cost; - $10,000.00

(Panel notes that an offer of $10,000.00 for repatriation from the Respondent therefore awards accordingly)

(d) 7% NPF of $19,800.00 - $1,386.00

Total pecuniary award;

1. 5 months salary - $19,800.00
2. Payment in lieu of notice - $3,960.00
3. Repatriation Cost - $10,000.00
4. 7% NPF - $1,386.00
   

Total - $35,146.00

28. The Panel therefore considers the sum of $35,146.00 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

29. The Panel makes the following Orders;
    
    1. The Respondent is to pay the sum of $35,146.00 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

30. 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

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^[1] Solomon Taiyo Ltd v SI National Union of Workers (No 2) [1986] SBHC 20; [1985-1986] SILR 235 (3 October 1986)