Gnochro v Central Islands Province Education Authority [2022] SBTDP 2; UDF 32 of 2018 (13 September 2022)

IN THE TRADE DISPUTES PANEL
SOLOMON ISLANDS

CASE NO. UDF 32/2018

BETWEEN:

Eric Gnochro
(COMPLAINANT)

AND:

Central Islands Province Education Authority
(RESPONDENT)

Panel:	1. Willy Vaiyu (Deputy Chairman)
	2. Elsa Maina (Employer representative)
	3. Edward Bamu (Employee representative)
Appearance:	4. Martha Manaka for Complainants 5. Respondent barred

Date of hearing: 22/06/2022

Date of Ruling: 13/09/2022

FINDING

1. Eric Gnochro, herein referred to as the Complainant, lodged with the Panel (TDP Form 1) on 05/10/2018, claiming he was unfairly dismissed by Central Islands Province Education Authority (CIPEA), herein referred to as the Respondent, on 05/07/2018. The grounds for his complaint were stated as follows:
   
   1. No notice of termination,
      
   2. Pre-mature termination of contract,
      
   3. No substantial reasons for termination.
      

Relevant Facts

2. The Complainant was employed by the Respondent as a teacher (Principal of Siota Secondary School. His employment began on 01/01/1998 as a teacher, he signed a 3-year contract with CIPEA as Principal of Siota Secondary School. The contract

actually commences on the 01/02/2016 to expire on the 30/12/2018. He has been employed as a teacher for 20 years and 7 months.

3. During the hearing the Respondent was barred from further taking part in the proceedings by virtue of TDP Act (Unfair Dismissal & Redundancy Procedure Rules) Rules. 8(4) on grounds of continual nonappearances before the Panel.
   
4. It was noted that on the TDP F1 the Complainant stated his employment commences on the 1/1/1998 and was terminated on the 5/7/2018. On TDP F2 the Respondent stated the Complainants employment commences on the 1/1/1998 and was terminated on the 30/12/2018 contrary to what the Complainant stated in TDP F1.
   
5. It was evident before the Panel that the contract signed between the Respondent and the Complainant was for 3 years. The termination clause of the contract states;
   

“Either party may terminate the employment by giving the other THREE (ONE for those with Provisional Registration) months’ notice in writing.”

6. The evidence of the Complainant the Panel heard that he was not given any such notice. In fact, there was no notice or a letter indicating a demotion, no allegations or no discipline against him.

He was aware of his replacement as Principal of Siota appearing in Island Sun News Paper of 31/1/2018. The allegations stated in the media at that time was never put to him by the Respondent.

7. The Panel heard that he was only aware of his posting to Binusa (Vatilau CHS) when he was given a copy of TDP F2 and other documents filed by the Respondent with TDP at TDP office front desk in November 2018.
   
8. The documents filed with the Panel by the Respondent at that time were;
   
   1. TDP F2,
   2. Brief report in support of TDP F2,
   3. A copy of the Complainants Confirmation of Appointment as Siota Principal at Level 10 from the Ministry of Education in Honiara,
   4. Copy of Offer letter for the post of Principal of Siota Secondary School from CIPEA,
   5. Copy of the Complainants Occurrence Report from Teaching Service Division in Honiara,
   6. A copy of Contact Report by CIPEA,
   7. Copy of payslips of 1/3/2018 and 5/7/2018
   8. Letter of Offer of Appointment from CIPEA for the Principal Vatilau CHS,
   9. Copy of Teacher Posting for Central Province 2018,
   10. Copy of pay structure for Vatilau CHS from Teaching Service.
       
9. The Panel noted the following in those documents filed by CIPEA;
   
   1. TDP F2, the date of termination (30/12/2018) was the expiry date of the Complainants contract,
   2. The Complainant stated that it was his own initiative that he took courses with USP and not initiated by CIPEA and that he was never been informed of any submission by CIPEA to USP for him to do any further studies and that he was never been informed that the submission was unsuccessful.

The Panel heard that the Complainant was never informed of his post as the Principal of Siota has been terminated and that the vacant post of the Principal was never advertised in public.

3. The Complainant agreed that it is the actual copy of his Confirmation of his Appointment as the Principal of Siota.
   
4. The Complainant agreed that that was a copy of the Offer letter that he signed with CIPEA on the 1/2/2016.
   
5. The Complainant agreed with the content of the Occurrence Report by Teaching Service Division in Honiara.
   
6. The Complainant stated that the report was made to shown that he was absent from the school he was posted in 2018. He only knew of the posting when he was given a copy by the TDP Secretary in November 2018.
   
7. Those were copies of his payslips.
   
8. The Offer Letter from CIPEA dated 5/3/2018 has a lot of flews and irregularities;
   

Firstly, there is no reference on the letter head,

Secondly, the salary level is L8, but where is the letter of the Complainants demotion from L10 to L8?

Thirdly, the TPF number (210957) and the NPF number (1329083) cited in the letter was not the Complainant TPF and NPF numbers. The Complainants TPF and NPF numbers are, 209135 and 0306557 respectively.

Fourthly, the date of commencement was February 2018 the offer letter was dated 5/3/2018.

Lastly, the offer letter was never signed by the designator no the Complainant.

9. A member of CIPEA Board (George Noel) made a sworn Statutory Declaration on the 22/11/2019 in support of the Complaints claim in TDP and stated that there was only one CIPEA Teachers Postings List in 2018 and he was at the Board meeting during the endorsement of the list and the list does not have the Complainants name on it. The one filed by CIPEA having the Complainants name on it and to be posted at Vatilau as the Principal is a bogus list, CIPEA Board never approved of any amended teachers posting list for 2018 that he is aware of.
   
10. The copy of the pay structure with the names against each teaching post at Vatilau CHS only confirms Peter Kobai as the designate Principal and Anna Gafui as the Deputy endorsed by CIPEA Borad, the Complainants name was not on the list as oppose to the list attached to the letter of offer for the Complainant to be posted at Vatilau as the Principal.
    

Law

10. In unfair dismissal cases, the guiding principles in determining whether a dismissal is fair or not is found in Section 4 of the Unfair Dismissal Act, Cap 77, which states:
    

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

11. The Panel in determining whether the termination was fair or not these two questions must be asked and provide an answer;
    
    1. Was the reason for dismissing the Complainant substantial and of a kind justifying a dismissal of an employee holding the Complainant's position?
       
    2. Did the employer acted reasonably in treating that reason as sufficient in terminating the complainant?
       
12. In answering these two questions, the Panel heard on the evidence that the Complainant was never issued with any warning letter, no 3 months notice given to the Complainant as per the termination clause in the contract of employment, no termination letter, no letter explaining reasons for termination. On top of that the Complainant was never give a chance to explain himself to the Respondent if there has been a breach of the employment contract.
    
13. The right to hire and fire is vested on the employer however, the Complainant reserves the right not to have his job taken away from him unfairly, this is what the Law has to say about this,
    

Unfair Dismissal Act [Cap. 77] 1983 Section 2 (1) states;

“Subject to the following provisions, every employee has the right not to be unfairly dismissed by his employer.”

Natural Justice

14. 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 own cause);
       
    2. The right to a fair hearing (audi alteram partem – hear the other side).
       

This rule 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/her case. This also means an opportunity and adequate time to be informed of the allegations and to reply to any allegations.

15. The Principles of Natural justice is a must process for any two conflicting parties to follow and must be observed despite whatever employment Policy or Rules of a company or employer may say about employees conduct when performing or not performing their duties. The principles of natural justice, however was never afforded to the Complainant in this case and he was denied.
    
16. The Panel answers both questions in paragraph 11 above in the negative form and that it is in the Panels respective view that there was no evidence before the Panel that substantially justify a termination of an employee holding the Complainants position. The Respondent acted unreasonably in giving no reasons as justifying and sufficient in terminating the Complainant and therefore the Panel finds the termination to be unfair in those circumstances.
    

ORDERS

17. The Panel makes the following Orders;
    
    1. That the termination of the Complainant was unfair and unlawful by virtue of the Unfair Dismissal Act [Cap 77] Section 4(1) (a) (b).
       
    2. That the Respondent immediately reinstate the Complainant at Level 10.1 and be posted to a school with immediate effect.
       
    3. That the Respondent pay back the Complainant his full salary at Level 10.1 from the date of his last pay day in 2018 to the current pay day in 2022.
       
    4. That the Respondent pay the Complainants’ his Annual Leave entitlements in 2018, 2019, 2020 and 2021.
       
    5. Pursuant to Section 11 of the Trade Disputes Act [Cap 75]1981as read with Section 11(2) of the Unfair Dismissal Act [Cap 77] 1983 the Panel orders the Respondent to pay Panel expenses in the sum of two thousand dollars ($2,000.00) to the Ministry of Commerce, Industry Labour & Immigration within 14 days of this Order.
       

APPEAL

18. There is a right of appeal within 30 days from the publication of this ruling by any aggrieved party to the High Court on question of law only, pursuant to Section 13 of the Trade Disputes Act [Cap 75] 1981as read with Section 11(1) of the Unfair Dismissal Act [Cap 77]1983.
    

On behalf of the Panel,

Willy Vaiyu.
Deputy Chairman
Trade Dispute Panel