Mamae v Sol Tuna Co Ltd [2023] SBTDP 7; UDF 77 of 2022 (31 October 2023)

IN THE TRADE DISPUTES PANEL
SOLOMON ISLANDS CASE NO. UDF: 77/2022

BETWEEN:

Eddie MAMAE
(COMPLAINANT)

AND:

Sol Tuna Co. Ltd
(RESPONDENT)

Panel: 1. Willy Vaiyu - Deputy Chairman
2. Drummond Rupert - Employer Representative
3. Myke Puhara - Employee Representative

Appearances: - Gregory Muaki for the Respondent

- Maito’o Hauirae for the Complainant

Pre-hearing assessment - 09/08/2023

Opinion ruling - 31/10/2023

FINDING

1. This is the Panels opinion on the pre-hearing assessment.

The application was made on behalf of the Respondent pursuant to Rule 10 of the TDP UD & Redundancy Procedure Rules, seeking the Panels opinion on the likely or the unlikeliness of the complainant to succeed in this proceeding.

1. The Panel would like to thank both counsels for their written and oral submissions with the documents filed, it has assisted the Panel in coming up with their opinion.
   
2. The Panel has noted that the complainant was complaining of unfair dismissal and the grounds of complaint were,
   

1. Wrongly accused for insubordination,
2. Unfair dismissal.
   
   3. On the other hand the Respondent stated that the Complainant was fairly dismissed on grounds of,
      
1. Insubordination,
2. Breaching of company policy,
3. Breach of 1 year good behaviour bond after a final warning letter for the same unwanted behaviour.
   
   4. The Panel notes that the complainant was a supervisor and has been disciplined and was actually under discipline during the time of the incident as he was given a final warning letter on the 26/11/2022 and this type of discipline from employer, a final warning letter, cannot be subsided for a no warning and no notice in any work place.
      
   5. In his oral and written submission Counsel for the complaint argued that his clients’ termination was unfair as it was not work related, that the reasons stated in the termination letter were vague and does not breach Section 9.5 of the Company Policy and that his client was not afforded natural justice. He further argued that his client has reasonable prospect of succeeding based on materials submitted.
      
   6. The Panel also noted from materials submitted that the complainant was first issued with a first warning letter in 2015 for absenteeism and failure to follow procedures. A second waring letter was then issued to the complainant in September 2016 for unsatisfactory work performance, failure to follow procedures, rudeness and carelessness. The final warning letter, as stated above was issued on the 26/11/2021 for unsatisfactory work performance, insubordination, uncalled for behaviours and attitude.
      
   7. The Panel notes that the complainant has an attitude problem, after being issued with those warning letters he repeatedly continues those behaviours that he was being warned for.
      
   8. The Panel asks a question, “What does an employee expect after receiving two written warnings from his employer and then a final written warning?” For the Panel, the answer is a definite termination for “any” future breach of the Company Policy. How can the Complainant say that the termination was not work related when the incident happened in the company premises and against his manager?
      
   9. The Panel is of the view that the circumstances in receiving a final written warning and the incident that follow warrants the Complaints termination and does not have to be precisely breaching any in the list in Section 9.5 of the Company Policy. The list in Section 9.5 are for first time offenders, the complainant is not a first time offender of the Company Policy. He was a supervisor, a middle management position in any organisation and he was supposed to be well versed with company procedures, rules, regulations and policies’ governing the work place and the company.
      
   10. The Panel is of the view that it is always a procedure that if someone is going to be absent from office for some time the organisation will appoint another to act on his behalf, therefore the Panel find no issue with the signing of reply to the complainants appeal letter.
       
   11. The Panel notes again that since the termination letter allowed for an appeal and the complainant appealed, natural justice was being offered and served in that manner. The complainant in fact apologised and did not denied the allegations made against him he also acknowledged violating the Company Policy, he said it, he is guilty so he apologised.
       
   12. After going through all the documents and the submissions submitted by both parties the Panel is of the opinion that the complainant has no reasonable prospect and is unlikely to succeed in this proceeding.
       
   13. If the complainant shall not withdraw his contention and persist up to the hearing the Panel shall make an order for costs against him at the hearing if the ruling at the hearing goes against him.
       

On behalf of the Panel,

Willy Vaiyu
Deputy Chairman
Trade Disputes Panel