Houlosi v CCECC South Pacific (SI) Ltd [2024] SBTDP 2; UDF 65 of 2022 (11 April 2024)

IN THE TRADE DISPUTES PANEL
SOLOMON ISLANDS

CASE NO. UDF 65, 66/2022 & 09/2023

BETWEEN:

Eddie Houlosi, Philip Anita & Jason Siosi
(COMPLAINANT)

AND:

CCECC South Pacific (SI) Ltd
(RESPONDENT)

Panel:	1. Willy Vaiyu (Deputy Chairman)
	2. Ian Rakafia (Employer representative)
	3. Myke Puhara (Employee representative)
Appearance:	4. Lolitha Tabepepeti for the Complainants 5. Respondent Barred

Date of hearing: 20/06/2023

Date of Ruling: 11/04/2024

FINDING

1. There were three complainants, Eddie Houlosi, Philip Anita and Jason Siosi, herein referred to as the Complainants, Houlosi and Anita lodged with the Panel (TDP Form 1) on 27/10/2022 and Siosi on the 02/02/2023, claiming they were unfairly dismissed by their employer CCECC South Pacific (SI) Ltd, herein referred to as the Respondent.

Both Houlosi and Anita claimed they were terminated on the 31/08/2022 whist Siosi claimed he was terminated on the 23/12/2022.

Their cases have been consolidated because their grounds for their complaint were the same and against the same Respondent and were stated as follows:

1. Terminations not procedural
2. No warning given
3. No natural justice
   

Relevant Facts

2. The Complainants were employed by the Respondent. Houlosi was employed as a security guard and his employment began on 28/12/2021 and was terminated on the 31/08/2022, he has been employed by the Respondent for 7 months.

Anita was employed as a security guard and his employment began on 28/05/2021 and was terminated on the 31/08/2022, he has been employed by the Respondent for 1 year and 5 months.

Siosi was employed as a carpenter and his employment began on 13/11/2021 and was terminated on the 23/12/2022, he has been employed by the Respondent for 1 year and 1 month.

3. During the hearing the Respondent was barred pursuant to ----. During the hearing Counsel for the Complainant confirmed again this arrangement. There was no witness call by the Respondent.
   
4. The Respondent stated that the reasons for the Complainants dismissal were;
   
   1. Refusal to sign letter of employment under revised establishment,
   2. Use Supervisory Committee to suspend the Board of Directors (insubordination),
   3. Paid himself salary equivalent to level 10.7
      
5. The Panel was informed that the Complainant was still working as an accountant for the Respondent on the day he was offered the job of Chief admin Officer. The Complainant was terminated on the 01/05/2018. The grounds of his terminations are stated above at paragraph 4. The Panel has noted the following irregularities before the Complainant’s termination;
   
   1. The Complainant was served with a warning letter dated 26/03/2018 by the Respondent.
   2. The next day 27/03/2018 the complainant was offered the job of Chief Admin Officer by the Respondent.
   3. On the 01/05/2018 the Complainant was terminated from employment by the Respondent.
      
6. The Panel then poses the following questions,

Why offer a job to an officer who is just been served with a warning letter?

Was he not under discipline (warning letter)?

Why terminate an officer for not accepting an offer of a job he did not apply for when he is already employed.

Did he apply for the job?

Why not terminate the offer and let him leave on his job?

7. There is no evidence before the Panel that the Complainant applied for the job or that the job was advertised.
   
8. In cases of insubordination there has to be a lawful directive, clear, reasonable and the directive was disobeyed by the recipient. Was the directive by the Complainant to the Supervisory Committee to suspend the Board of Directors lawful? This can’t be, in order for the Complainant to be in an insubordinate situation he must have disobeyed an order or directive from the Supervisory Committee or from those who were in authority above him. There is no evidence on that regarding insubordination.
   

Natural Justice

9. 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.

10. 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.

Law

11. 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.”

12. 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.”

13. The Panel in determining whether the termination was fair or unfair 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?
       
14. The Panel answers both questions in paragraph 13 above in the negative form and that it is 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.
    

Award

15. In awarding compensation, the Panel notes that the Complainant had worked for the Respondent for a period of 4 years and 6 months. The Complainant has not secured any employment since termination on the 01/05/2018.
    

The Panel therefore awards;

1. 3 months’ salary as compensation to the Complainant for loss of employment,
2. Payment in lieu of notice,
3. Repatriation costs,
4. 7% NFP for the 3 months’ salary.
   

These awards are calculated as follows;

(a) Three months’ salary;

Fortnight salary - $1,861.91

Monthly salary - $3,723.82
3-months’ salary x $3,723.82 - $11,171.46

(b) Payment in lieu of notice; - $3,723.82

(c) Repatriation Cost; - $2,000.00

(d) 7% NPF of $11,171.46 - $782.00

Total pecuniary award;

1. 3 months’ salary - $11,171.46
2. Payment in lieu of notice - $3,723.82
3. Repatriation Cost - $2,000.00
4. 7% NPF - $782.00
   

Total - $17,677.28

16. The Panel therefore considers the sum of $17,677.28 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

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. The Respondent is to pay the sum of $17,677.28 as compensation to the Complainant for unfair dismissal within 14 days of this Order.
       
    3. Any other pecuniary claims by the Complainant can be done with the formal Courts, the Panel does not have the jurisdiction to hear such claims.
    4. 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 one thousand dollars ($1,000.00) 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