Tapa v Bulacan Integrated Wood Industries (SI) Co Ltd [2022] SBTDP 3; UDF 77 of 2017 (9 November 2022)

IN THE TRADE DISPUTES PANEL
SOLOMON ISLANDS

CASE NO. UDF 77/2017

BETWEEN:

Jasper Tapa
(COMPLAINANT)

AND:

Bulacan Integrated Wood Industries (SI) Co. Ltd
(RESPONDENT)

Panel:	1. Willy Vaiyu (Deputy Chairman)
	2. Ian Rakafia (Employer representative)
	3. Edward Bamu (Employee representative)
Appearance:	4. Pauline Firibae for Complainants 5. Respondent barred

Date of hearing: 03/08/2022

Date of Ruling: 09/11/2022

FINDING

1. Jasper Tapa, herein referred to as the Complainant, lodged with the Panel (TDP Form 1) on 08/05/2017, claiming he was unfairly dismissed by Bulacan Integrated Wood Industries, herein referred to as the Respondent, on 04/05/2017. The grounds for his complaint were stated as follows:
   
   1. No prior notice of termination,
      
   2. Denied natural justice,
      
   3. No substantial reasons for termination.
      

Relevant Facts

2. The Complainant was employed by the Respondent as the Captain of one of its tag boat MV. Bintang Barata. His employment began on 04/09/2016 and was terminated on the 04/05/2017. He has been employed by the Respondent for only 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. The Respondent was first barred on the 17/03/2021 on grounds of nonappearance before the Panel. The Respondent applied for the Order to be revoke alleging non service of notice prior the hearing. The Panel agreed on the grounds of appeal and the Order was revoked on the 11/05/2021. Prior to the Panel Order to Bar the Respondent there has been 10 Panel sittings with only 1 appearance for Respondent and 7 appearances for the Complainant.
   
5. TDP F2 was filed by the Respondent on the 20/11/2020, that is more than 3 years after TDP Sectary sent 3 copies of TDP F1 to the Respondent and to respond in 21 days by virtue of Rule 7(1) and any extension of time allowed by these Rules is made under Rule 13 (1) of the Trade Disputes Panel, (Unfair Dismissal and Redundancy) Procedure Rules, [Cap 75]
   
6. The affidavit in support of the application for extension of time was filed by the Respondent on the 23/04/2021, that was about 5 months after their filing of TDP F2. After the filling of the TDP F2, there were four Panel sittings in which notices of appearances were send to the Respondent but they ignored these notices and did not appear before the Panel. On the 30/06/2021, the Complainant made an application again before the Panel to bar the Respondent for the second time, the application was granted, again on grounds on nonappearances.
   
7. The Panel notes that since this matter was registered on the 08/05/2017 there has been a total of 25 Panel sittings in relation to this matter. The only one appearance the Respondent was present before the Panel was on the 11/11/2020 when that was the sixth appearance of the 25 total of appearances. The Complainant however appeared 19 times of these 25 Panel sittings.
   
8. The evidence of the Respondent were content in TPD F2 and the affidavit for an application for the matter to be striked out. The application for strike out was refused, the Respondent did not even turn up to actually make the application before the Panel.
   
9. The grounds for the termination of the Complainant according to the Respondent were as follows;
   
   1. Misconduct,
   2. Insubordinations,
   3. Drunk and,
   4. Negligence of duty.
      
10. The evidence of the Complainant was that on the 30/04/2017 he was directed to load machines and to sail the Tug Boat Bingtang Barat to the Respondent company camp at Viviruni in Choiseul Province. The Panel was informed that the Respondent started loading on Monday 1^st May 2017 and to sail on the Tuesday 2^nd May 2017 on that day there was no provision of food and water on board for the ship’s crew therefore the Complainant, as the Captain, requested that be made available before sailing to Choiseul. The Complainant informed the ship’s crew of the situation and they all agreed with him that they are not departing until the ship is provided with ration for its crew for the trip.
    
11. On Thursday 4^th May 2017 the complainant was issued with a termination letter, alleging misconduct, insubordination, drunk and negligence of duty. These allegations were never substantiated and was denied by the Complainant.
    
12. The Complainant in his evidence the Panel heard that he out rightly denied being drunk and denied any form of misconduct he committed. The Panel heard that his action not to sail the ship was to protect the ship’s crew and in accordance with his knowledge of the Law of Solomon Islands in relation to Seaman’s Welfare citing Part VII of the Shipping Act 1998 Section 157 which states;

157 Provisions and water

(1) An owner or master of a vessel shall ensure that the provisions and water supplies for the use of seamen are as prescribed in Regulations.

(2) Where the Principal Shipping Officer is of the opinion that the provision or water on any vessel are in his opinion unwholesome or insufficient for the voyage, he may direct the owner or the master to replace them before the vessel goes to sea.

(3) An owner or master of a vessel who fails to comply with this section commits an offence, and shall be liable upon conviction to a fine not exceeding ten thousand dollars.

13. The Panel heard in the Complaint evidence that it was in the best interest of the ship’s crew and avoiding the Respondent committing an offense that he did not sail the ship.

Law

14. 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.

15. 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?
       
16. In answering these two questions, the Panel heard on the evidence that the Complainant was never issued with any warning letter before the termination, nor a notice prior to the termination.
    
17. 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

18. 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).
       
19. 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.
    
20. In the case of Simata v Goldie College Secondary School Board of Management [1998] SBHC 46; HC-CC 089 of 1997 (2 November 1998) the High Court in discussing Natural Justice cited the following;
    

“Although the question of denial of hearing, a denial of natural justice, in this case arises from a decision taken by a non public statutory entity, the approach in it to determine whether there has been denial of natural justice is the same as in cases in which the decider is a public statutory body. In the English Common Law, the duty of a decider not to take decision without offering opportunity to someone whose interest is affected to be heard, is implied. The duty is implied even when it is abundantly clear that the duty has been omitted in the empowering legislation. In Cooper -v Wandsworth Board of Works [1863] EngR 424; [1863] 14 CB (N.S) 180, the applicant commenced building his house without giving notice to the Board as required by statute. He built up to the second floor. One evening the Board demolished the building without asking him to explain his omission to give notice. The Board had statutory power to demolish if notice had not been given. The Court at first instance upheld the submission of the applicant that although the Board had power under the statute, that power was qualified by the requirement of natural justice that a person whose proprietary interest is affected is to be afforded opportunity to be heard. Appeal Court confirmed. After Coopers' case, English courts seemed to have decided inconsistently, the approach to determining requirement of opportunity to be heard, but since 1964 in the case, of Ridge -v- Baldwin [1963] UKHL 2; [1964] AC 40, confirming Coopers' case, the rule requiring implying the duty to afford opportunity to be heard has been firmly restored.” (Italic & unlined Panel emphases)

21. This quoted passage above from a High Court ruling was a case where an Act gives power to the Board to demolish for not following a requirement, the Board went ahead and demolished the building as the Act stated.

The Court ruled that the Rule of Natural Justice was not followed by the Board as there was no opportunity given to the builder to explain his omission to give notice to the Board.

22. 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.
    
23. The Panel therefore answers both questions in paragraph 15 (i) and (ii) 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 not affording natural justice to the Complainant and justifying has having sufficient reasons in terminating the Complainant and therefore the Panel finds the termination to be unfair in those circumstances.
    

AWARD

24. In awarding compensation, the Panel notes that the Complainant had worked for the Respondent for a period of 7 months before his employment was termination on the 04/05/2017.
    

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% NPF
   

These awards are calculated as follows;

(a) Four months’ salary;

Monthly salary - $6,000.00
Daily rate – 30 days/$6,000.00 - $200.00
Hourly rate – 8/$200.00 - $25.00
4 months x $6,000.00 - $24,000.00

(b) Payment in lieu of notice;

1 month salary - $6,000.00

(c) Repatriation Cost; - $5,000.00

(d) 7% NPF

7% NPF of 4 months’ salary - $1,680.00

Total pecuniary award;

1. 4 months’ salary - $24,000.00
2. Payment in lieu of notice - $6,000.00
3. Repatriation Cost - $5,000.00
4. 7% NPF - $1,680.00
   

Total - $36,680.00

25. The Panel therefore considers the sum of $36,680.00 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

26. 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. The Respondent is to pay the sum of $36,680 as compensation to the Complainant for unfair dismissal and loss of employment within 14 days of this Order.
       
    3. 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

27. 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