Kodele v Solwin Co Ltd [2023] SBTDP 2; UDF 14 of 2023 (5 July 2023)

IN THE TRADE DISPUTES PANEL
SOLOMON ISLANDS

CASE NO. UDF 14/2023

BETWEEN:

Malcolm Kodele
(COMPLAINANT)

AND:

Solwin Company Ltd
(RESPONDENT)

Panel:	1. Willy Vaiyu (Deputy Chairman)
	2. Ian Rakafia (Employer representative)
	3. Edward Bamu (Employee representative)
Appearance:	4. Lolitta Tabepepeti for Complainants 5. Garry Tong for the Respondent

Date of hearing: 05/07/2023

Date of Ruling: 05/07/2023

FINDING

1. Malcolm Kodele, herein referred to as the Complainant, lodged with the Panel (TDP Form 1) on 21/10/2023, claiming he was unfairly dismissed by Solwin Company Ltd, herein referred to as the Respondent, on 15/02/2023. The grounds for his complaint were stated as follows:
   
   1. No procedural termination,
      
   2. No warning prior to termination,
      
   3. No notice served.
      

Relevant Facts

2. The Complainant was employed by the Respondent as a security guard on the Respondents farm. The Respondent runs a poultry egg layer farm. His employment began in January 2021, there was no contract of employment signed between the Respondent and the Complainant. He has been working with the Respondent for over two years.
   
3. During the hearing the Respondent denied having employed the Complainant, alleging the Complainant was only providing security service for the Respondent and was paid according to invoice submitted to the Respondent by the Complainant. The Respondent also stated that the Complainant was also paid six hundred dollars ($600.00) monthly as “agent fee”.
   
4. The Panel heard the arrangement for the job was made between the Complainant and the Respondent and that there was no written agreement and that there was no employment relationship between them.
   
5. The Complainant has come to the Panel seeking redress over what he thought to be an employment relationship between him and the Respondent. The Panel is faced with a question whether the relationship that was agreed on between the Respondent and the Complainant when executing security duties from January 2021 to February 2023 was an “agent” or “employment” relationship.
   
6. The Panel is of the view that in an “agent” relationship generally the “agent” must be doing the service the Respondent (Principal) was doing on its behalf. In this case the Respondent farms and sales eggs. The “agent” must sale eggs on behalf of the Respondent to be an “agent”. There are other types of “agents” but that would be regulated by a written contract between the “agent” and the “principal”, this was not the case in the circumstances of this case.
   
7. What is “worker or employee”, the definition is found in the Employment Act (Cap. 72) Section 1, Schedule 3, Glossary;

“Except in Part III, means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

The definition of contract of employment;

“Means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether it is oral or in writing.”

The definition of causal worker is defined in the Labour Act (Cap. 73) states;

"casual employee or worker" means an employee or worker employed on a temporary or irregular basis at an hourly or daily rate of wages payable at the end of each day or on completion of a task or piece of work specified at the time of engagement which task is capable of being completed in a shorter period than the normal working week or the statutory working week whichever is the lesser;

8. The Complainant was engaged for 2 two years by the Respondent as security guard, can we say he was a casual worker? No! He was not selling eggs, was he an “agent” of the Respondent? No! The Panel is of the view that the Complainant was a permanent worker under oral and implied contract.
   
9. The Respondent argued that if he is an employee the “agent fee” of six hundred dollars ($600.00) must be refunded by the Complainant in full for the two years of service. However the Panel has no jurisdiction to hear such pecuniary claim that would be done in the formal courts.
   
10. The Panel is of the view that Complainant was not an “agent” of the Respondent but there was in an established employer/employee relationship and the normal termination procedure should have been followed by the Respondent therefore, the termination was unfair

AWARD

11. In awarding compensation, the Panel notes that the Complainant had seen the Commissioner of Labour (COL) before coming to the Panel and COL had suggested for the Respondent to pay the Complainant as compensation to the Complainant and the Panel has agreed and endorse the payment of one month in lieu of notice and holiday pro-rata;
    
    • ✓ One month in lieu of notice - $2,688.00
    • ✓ Holiday pro-rata - $2880.00
    • ✓ Total - $5,568.00
      

To be paid 7 days from today.

12. No order for costs

APPEAL

13. 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