Mark v Chung Wah School [2023] SBTDP 1; UDF 25 of 2023 (21 June 2023)

IN THE TRADE DISPUTES PANEL
SOLOMON ISLANDS CASE NO. UDF 25, 26, & 27/2023

BETWEEN:

Charlene MARK & Others
(COMPLAINANT)

AND:

Chung Wah School
(RESPONDENT)

Panel: 1. Willy Vaiyu - Deputy Chairman
2. Elsa Maina - Employer Representative
3. Edward Bamu - Employee Representative

Appearances: - Lolita Tabepepeti for the Complainant

- Ann Jeanette Umali for the Respondent

Date of Hearing: 21/06/2023
Date Finding Delivered: 21/06/2023

FINDING

1. This is a case involving 3 former employees (Complainants) of Chung Wah School, the Respondent.

They were Ms. Charlene Mark (UDF NO: 25/2023), Ms. Ella Iio (UDF NO: 26/2023) and Ms. Rose Kere (UDF NO: 27/2023).

All of the 3 complainants signed their contracts of employment (Exhibit 1) on the 21/06/2022 all of their contracts however commences on the 13/06/2022 and ends on the 23/12/2022, the end of 2022 academic year.

The Panel has dealt with all 3 complainants together as these matters have been consolidated and the issues are the same.

Relevant facts

2. By complaints lodged to the Panel (TDP Forms 1) (Exhibit 4) by all the Complainants on the 16/03/2023, the Complainants claimed they were unfairly dismissed by the Respondent on 23/12/2023 (Exhibit 2 – 1 month notice letter).

The ground for their complaint were stated as follows:

1. Termination not procedural,
2. No warning letter,
3. No notice given.
   

3. The Respondent filed notices of appearance, TDF F2, (Exhibit 3) on 17/04/2023 on which they denied the claims citing the Complainant’s dismissals were procedural and were in compliance with paragraphs 3 and 13 of their employment contract, Letter of Appointment (Exhibit 1).
   

Paragraph 3 of the Letter of Appointment/Contract states;

Tenure

“Your appointment will be for a term of one year from the date of commencement. In this case your appointment will lapse at the end of 2022 academic year. Extension or further contracts will be subject to satisfactory performance, the need of the school and funding availability.”

Paragraph 13;

Termination

“This contract may be terminated by either party with a minimum written notice of one month or dismissal under paragraph 14 below.”

4. There was no submission required from parties as the ruling was made in court and this is the Panel written ruling.
   
5. Ms. Mark was employed as Secondary Teacher, Ms. Iio was employed as a Teacher Assistant and Ms. Kere was employed as a Class Teacher.
   

Law

6. Section 2(1) of the Unfair Dismissal Act [Cap 77], Right not to be unfairly dismissed states;
   

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

What this clause is simply saying is, an employer can dismiss an employee but the dismissal must not be unfair but rather fair.

7. The meaning of Dismiss is provided for in Section 3 of Unfair Dismissal Act [Cap 77] which states;

“For the purposes of this Act, an employee is dismissed by his employer if and only if;

(a) the contract under which he is employed is terminated by the employer (by notice or otherwise);

(b) the contract under which he is employed is a fixed term contract and the term expires without being renewed under the same contract; or

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which, by reason of the employer's conduct, the employee is entitled to terminate it without notice. (Bold, underline, italic Panel emphases)

8. Clauses (a), (b) & (c) of Section 3 of the Unfair Dismissal Act [Cap 77] as stated above was actually a condition of the contact signed on the 21/06/2022 between the Respondent and the Complainants.
   
9. Section 3(a) of the Unfair Dismissal Act [Cap 77] and paragraphs 3 & 13 of the contract do not require the employer or the Respondent to substantiate the reason for such dismissal under Section 3 (a), the requirement for a termination under Section 3 (a) is pay in lieu of notice or a notice prior to the date of effect of termination which was fulfilled by the Respondent.
   
10. The Panel is of the view that all the grounds, termination not procedural, no warning letter and no notice given, stated by the Complainants as their grounds of their complaints of being dismissed must fail and be dismissed forthwith.
    

Order

1. Section 3(a) of Unfair Dismissal Act [Cap 77] and paragraphs 3 & 13 of the Contract of their employment is applicable in this case.
   
2. That Section 4 of the Unfair Dismissal Act [Cap 77] do not apply in the circumstances of this case.
   
3. That there was no need for the Respondent to substantiate reasons to warrant the termination of the Complainant as their dismissal was procedural in accordance with Section 3(a) of Unfair Dismissal Act [Cap 77] and their employment contract.
   
4. Any pecuniary claims in relation to their dismissal is refused and dismissed accordingly.
   
5. That there are no outstanding payments due to the Complainant as that has been settled by the Respondent.
   
6. No Panel expenses ordered.
   

Appeal

11. 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 11(1) of the Unfair Dismissal Act [Cap 77].
    

On behalf of the Panel,

Willy Vaiyu.
Deputy Chairman
Trade Dispute Panel