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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 180 of 1990 &
Civil Case No. 181 of 1990ckquote>
SOLOMON ISLANDS PORTS AUTHORITY v DAVID TAROFIMANA
SOLOMON TAIYO LIMITED v LONSDALE BERA
Before: r lmer J
Hearing: 20th November1995 - Judgment: 28th March 1996
Counsel: J. C. Corrin for appellant - P. Lavery for David Tarofimana; No appearance fory L. Bera
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PALMER J:
This judgment deals with two cases which have been consolidated and heard together as the issues raised in both were similar. I will deal with each case separately, but where the issues are similar, this will be indicated in the judgment.
CIVIL CASE 180 OF 1990
This is an appeal against the findings of the Trade Dispute Panel that David Tarofimana (the Respondent) was unfairly dismissed and in awarding him compensation calculated at the equivalent of the redundancy payment to which he would have been entitled, plus three months additional pay, interest to date at 15%, and $100.00 costs towards the expenses of attending the hearing, the Appellant (Solomon Islands Ports Authority) seeks orders inter alia:
(i) that the decision of the Trade Disputes Panel be set aside:
(ii) in the alternative that the award of interest to the Respondent be set aside;
(iii) in the alternative that the amount of interest awarded to the Respondent be reduced.
A number of grounds have been raised in the Appeal and these will now be addressed in the order set out in the Notice of Appeal.
GROUND 1:
"That the Panel's finding that the Appellant had not established any substantial reason for the dismissal of the Respondent was against the weight of the evidence and more particularly:
(i) The Panel erred in failing to take into account the documentary evidence produced by the Appellant;
(ii) The Panel erred in holding that the Appellant failed to make any enquiry at all into the reasons for the Respondent's final absence. "
Ms. Corrin, of Counsel for the Appellant sought to argue that at least six written warnings had been given to the Respondent prior to the incident in July 1989 before his termination but that these were not taken into account by the Trade Disputes Panel (the Panel). These were referred to in pages 1 and 2 of the records of proceedings of the Panel by Glyn Joshua, the Personnel Manager of the Appellant Authority.
Unfortunately, I am not satisfied that what was alleged by learned Counsel above, correct. If we look at pages 1 and 2 of the findings of the Panel it will be seen very plainly that the Panel did take those six written warnings into account.
At page 1 for instance, the Panel noted the following:
"In spite of that catalogue of alleged misdemeanours, the Applicant had been promoted over the same period, had received a merit award in 1987, and his transfer to Noro in October 1988 had been accompanied by a pay rise and seen as an opportunity for him to improve himself."
This observation of the Panel is crucial to the allegation of the Appellant that the Panel did not take into account the documentary evidence produced by it. It is my respectful view that the Panel did take those documentary evidence into account, having listed them in page 1 and 2 of its findings, but in spite of these, found in favour of the applicant in that, over the same period the Respondent had been promoted and given a merit award.
Further, at paragraph 5 of page 2 of the decision, the Panel pointed out that the Applicant, Tarofimana did deny receiving any previous warnings, other than that of 8 January 1988. It pointed out also that the Respondent failed to produce any record of his receipt of the warnings, on his attendance record. It would seem therefore that from those lists of previous warnings, only one would appear to be effective. If that is accepted in favour of Tarofimana, (and it would seem that that was the approach taken by me Panel) then the Panel need only treat that one previous warning as valid, and ignore the others. This would further whittle away the argument that the panel did not take those documentary evidence into account.
These are clearly matters that go to weight and the Panel is in a better position to assess that. As a matter of general rule, courts are very reluctant to overturn a tribunal's findings on such situations. I am satisfied this ground must fail.
GROUND 1 (ii):
"The Panel erred in holding that the Appellant failed to make any inquiry at all into the reasons for the Respondent's final absence."
Ms Corrin submitted here that it was not true that no inquiry was held. She referred to page 2 of the records of proceedings of the Panel in which it was stated that the workmates of the Respondent (Tarofimana) at Noro were the ones who had reported him. The Personnel Manager took note of that report as well as his previous record and then referred the matter to the General Manager. That she argued showed evidence of an inquiry being held.
Unfortunately, the Panel did not think so. The enquiry which the Panel was referring to was the enquiry set up by the Disciplinary Committee (DC), under clause 3.7 of the General Conditions of Employment for Staff and Stevedores (GCESS). This is clear from the Panel's statements in pages 2 and 3 of its decision.
"The applicant also founded upon the Authority's General Conditions of Employment for Staff and Stevedores, which clearly provides for the appointment of a Disciplinary Committee as a prelude to termination, to conduct an enquiry which "shall allow the employee the right to present his case, give evidence in his defence and be represented at the hearing" (clause 3.7).
The Authority's representative appeared to believe that once a "final warning" had been given the question of termination become one for the discretion of the General Manager. That is incorrect. The Conditions of Employment provide for a final warning as one of the possible recommendations of a Disciplinary Committee in terms of clause 3.8.1. That clause does not authorise management to dispense with any committee or any inquiry and to issue "final warnings" followed by terminations without otherwise following the established procedures at all. The applicant has been denied the valuable rights contained in clause 3.7.
An enquiry would have discovered that there was a medical reason for Tarofimana's final absence. The Authority failed to make any enquiry at all into that matter and failed to carry out its own established disciplinary procedures".
I am satisfied this ground must be dismissed in that it failed to address adequately and to prove on the balance of probability that the Panel's finding, that there was no enquiry held pursuant to the disciplinary procedures of the appellant, was wrong. There is no evidence or little evidence to show that the appellant did hold an enquiry into the reasons for the Respondent's final absence. The clear evidence as noted by the Panel at paragraph 4 of page 2 of its decision is that on the return of the respondent to Noro on 31 July 1989, he was immediately handed a notice of termination dated 25 July. The clear impression given is that the respondent was not even given any opportunity to explain, and even if he could have offered any explanations, his termination had already been determined prior to his return, on the 25th of July, when he was still away. That is hardly consistent with the claim that an inquiry had been held.
GROUND 2 (i):
"The Panel erred in fact and law in holding that the Appellant did not act reasonably in treating its reasons as sufficient to justify the Respondent's dismissal and more particularly:
(i) The Panel erred in finding that the Appellant failed to carry out its established disciplinary procedures. "
The argument of the Appellant on this point is that there was no failure on its part to carry out its established disciplinary procedures in that the General Manager had the over-riding discretion to summarily dismiss the respondent for certain types of breaches as listed in clause 3.2 of the GCESS. Ms Corrin pointed out that the respondent had been guilty of a number of the breaches described in clause 3.2 (clauses 3.2.1, 3.2.2, 3.2.3, 3.2.5, 3.2.6, 3.2.10, 3.2.11, 3.2.12, 3.2.17), in previous occasions and that the respondent had been given many warnings, including final warnings, and on that basis the appellant believed that it was justified in summarily dismissing the respondent. Clause 3.2 states:
"Serious or persistent breaches of discipline which constitute a careless disregard for the rights of others in the workplace and the responsibilities assigned the employee will under normal circumstances be cause for dismissal. These breaches which include ... may be referred directly to the Manager who may exercise his discretion on matters of dismissal."
As I understand Ms Corrin's argument, she relies on the above clause to argue that it was not necessary for the Manager to refer the matter to the Disciplinary Committee under its disciplinary procedure. The Panel however was of the contrary view. At the last paragraph at page 2 of the panel's decision, it stated:
"The Authority's representative appeared to believe that once a "final warning" had been given (and I would add, including breaches listed in clause 3.2) the question of termination become one for the discretion of the General Manager. That is incorrect."
I think the question as to the exercise of the discretion of the General Manager must be defined and placed in proper context. The discretion of the General Manager cannot be properly exercised unless he has all the relevant facts before him. This is the crucial reason why it is necessary for an enquiry to be held. So even if the submission of Ms Corrin is accepted as correct, the discretion that may have been vested in the General Manager by clause 3.2 cannot be exercised arbitrarily. He would need to enquire into the facts himself, (in this case, the reasons for the absence of the respondent), and then satisfy himself that a dismissal was warranted. This would appear to be the reasoning of the Panel and its logical conclusion and interpretation of the disciplinary procedures outlined in the GCESS of the Appellant.
At the bottom of page 2 and top of page 3, the Panel made the following pertinent remarks:
"The Conditions of Employment provide for a final warning as one of the possible recommendations of a Disciplinary Committee in terms of clause 3.8.1. That clause does not authorise management to dispense with any committee or any inquiry and to issue "final warnings" followed by terminations without otherwise following the established procedures at all. The applicant has been denied the valuable rights contained in clause 3.7."
The above in my respectful view is not only good advice and sound practice to follow, but correctly interprets the clauses dealing with the disciplinary procedures of the appellant
Clause 3.8 is important to take note of as well because it helps to clarify how or when the discretion of the Manager may be exercised.
"When the DC is satisfied that the case against the employee is established it may recommend to the Manager any of the following courses of action". (Note, it is the vital function of the DC to ascertain the facts of the case before making a recommendation to the Manager) (emphasis mine).
Now, one of the recommendations that can be made by the DC is, "summary dismissal of the employee without notice or payment in lieu of notice". (See clause 3.8.4). Clause 3.8.4 then continues:
"In exercising his absolute discretion in all matters of a disciplinary nature the Manager will give due regard to the recommendations of the DC. The decision of the Manager is final."
The vital role of the DC therefore can be seen above in clause 3.8 as the important link with the exercise of the Manager's absolute discretion and finality of decision making on disciplinary matters. Within that framework and that was the approach taken by the Panel, the finding made by the Panel that the Appellant had failed to carry out its established disciplinary procedures, was correct.
However, how does one reconcile clause 3.2 with clause 3.8, and the other relevant clauses dealing with the convening of the DC. Ms Corrin submits that those clauses do not override the Manager's discretion as referred to in 3.2. Does this mean that if there is an allegation of a breach of one of the matters listed in clause 3.2, that the matter may be referred directly to the Manager, or, should such a referral be made only after the breach had been established? If the former approach is accepted, 'then it would seem to place a further responsibility on the Manager to personally enquire into the facts of the case himself, and only after having satisfied himself of its commission, to then exercise his discretion as to matters of dismissal. To by-pass the element of enquiry in my view would be wrong, in that it could give rise to an arbitrary and unjust decision, and would also be in breach of the fundamental principles of natural justice. As already adverted to, administratively, I do not think that such an interpretation would also be correct, as it could impose an unnecessary burden on the Manager, on a fact finding mission, when that could easily be done by a subordinate officer.
The second or latter approach, in my view is the more correct in that it is more consistent with the terms in clause 3.2 and clause 3.8. it is my respectful view that clause 3.2 does not in fact conflict with clause 3.8 but works in harmony with it. If there are allegations of breaches of any of the matters listed in 3.2, then the normal disciplinary procedures set out in clauses 3.7 and 3.8 should be followed. Only after the DC had made its findings and established that there had been a breach. then it may refer the matter directly to the Manager for his discretion on matters of dismissal. The DC would not then in such circumstances need to make a recommendation as provided for in clause 3.8.
I am satisfied accordingly, that the Panel correctly found that the Appellant had failed to carry out its established disciplinary procedures and that it denied the respondent's valuable rights as set out in clause 3.7.
GROUND 2 (ii):
"Alternatively the Panel erred in finding that it was mandatory for the Appellant to refer the matter to the Disciplinary Committee. "
According to this Court's acceptance of the Panel's findings in ground 2 (i) above, the requirement to refer the matter to the DC would be mandatory. However, even if we take the alternative approach suggested by Ms Corrin in this particular case, it would still have not made much difference to the ultimate result in that there is clear evidence that the Manager himself did not even conduct a proper enquiry into the respondent's absence. He only heard one side of the story, without giving any opportunity to the Respondent to respond to those allegations. As correctly found by the Panel, had the Manager done so, he would have discovered that there was a medical reason for the Respondent's absence. That would have been a material consideration in the exercise of his discretion, and as found by the Panel (which I accept), would have rendered the dismissal unjustified on insufficient grounds or reasons.
GROUND 3:
"The Panel erred in failing to take into account the fact that the disciplinary procedures of the Appellant were the subject of a referral to the Trade Disputes Panel".
The underlying reason behind this submission it seems is that the Panel's findings had been based conclusively on the fact that the Authority had failed to comply with its disciplinary procedures. However, those disciplinary procedures of the Panel had been the subject of a separate referral to the Panel which had not yet been adjudicated upon. The Panel therefore should not have taken such a strict approach against the Appellant in calculating the quantum of compensation.
This raises the question whether the formula adopted by the Panel for the calculation of the redundancy payments plus the additional three months pay were fair and reasonable in all the circumstances, in assessing the quantum of compensation due. It is important to note at the outset that the Unfair Dismissal Act, 1982, did not lay down any guidelines as to the manner in which compensation should be assessed. The Act however does entrust a wide discretion to the Panel to decide on the question of quantum of compensation, "taking account (among other things) of the conduct of the employer and the complainant both before and after the date of dismissal" There is an important clause though in section 7(2) of the Act, which fixes the maximum amount of compensation that the Panel may award.
"But that amount may not exceed the amount which, in the complaint's case, represents 52 x BW, where "BW" is the basic weekly wage of the complainant on the date of his dismissal." (s.7(2)).
This clause is quite important in that it acts as a gauge to the Panel when assessing the question of quantum. Quite obviously, the more serious of cases, with such aggravating features as have been suggested by Ms Corrin; for instance, where there had been a blatant disregard of the employment rules, or, discrimination of some sort, then the quantum would be expected to be in the upper brackets of that formula; say in the upper third bracket, in the range between 35-52 weeks pay. It is important to note that the figure of 52 represents roughly the number of weeks in a year, so that if the Panel were to grant compensation at the maximum rate of 52 x BW, then that will be equivalent to one full year wages of the employee. Now when that formula is placed in that context, and bearing in mind that the formula adopted for redundancy payments under the Employment Act is for a different purpose to that under the Unfair Dismissal Act, 1982, the logic or rationale for adopting and incorporating the formula for redundancy payments in assessing the quantum of compensation becomes difficult to follow and understand. I do note however, and this has been graciously conceded by Ms Corrin that the Panel had adopted that formula for calculating redundancy payments, as the standard practice in calculating compensation awards. This appears to have been accepted without any query or challenge in most previous cases, and I presume in many subsequent cases thereafter. Ms Corrin wishes to challenge that approach or practice nevertheless as not only inappropriate, but wrong in that it takes away the responsibility accorded to the Panel under the Unfair Dismissal Act, to assess the amount that it would consider to be "... fair and reasonable in all the circumstances, taking account (among other things) of the conduct of the employer and the complainant both before and after the date of dismissal". It would seem therefore, that evidence would need to be adduced inter alia, when the question of quantum is being assessed, as to the conduct of both parties before and after the date of dismissal. By applying the formula mechanically, the Panel is failing in its statutory duties to properly assess the quantum of compensation. With respect, I think there is much truth and relevance in Ms Corrin's submissions, and which must be heeded for future cases by the Panel.
I do not need to go into detail, regarding the differences between what are redundancy payments on one hand and compensation payments on the other. Basically, the former, seeks to take into account the period of service of the employee and to reward him for that. The longer he has been in employment, then the bigger or larger the amount he would be expected to receive, save that section 7(2) of the Employment Act, 1981, does place a limit to the maximum amount that can paid out; at the rate of 65 x BW (where "BW" is the basic weekly wage at the date of dismissal).
Compensation payments on the other hand is a remedy which the Panel may consider in lieu of reinstatement, or, where reinstatement had been recommended by the Panel under section 6(4)(b) of the Unfair Dismissal Act, but that it had not been complied with. It entails a balancing exercise and an active consideration of ail the relevant factors before the Panel. Each particular case must be considered on its own merits. For purposes of providing guidelines and assistance to the Panel for the future conduct of cases in assessing the quantum of compensation, the following may be taken into account amongst any others that the Panel may consider necessary:
- costs of reimbursing the worker for any wages lost, such as his entitlement under the employment agreement for whatever pay should have been made in lieu of notice, any estimated overtime lost in that period. holiday pay, and allowances;
- economic losses such as; expenses involved in shifting, costs incurred in finding a new job, costs of litigation, and other related costs arising from the termination of employment;
- non-economic losses; these may include injury to feelings, humiliation, distress of mind, injury to reputation and other related matters. (See "Law of Employment" A Szakats 2nd Edition - para. 241).
I must stress here that the above should act only as a guideline to the Panel in assessing the quantum of compensation. It may or not consider any of the above matters in the exercise of its discretion. There is no legal requirement that it must consider all of the above matters. The overall guiding factor is as has been laid down in the Act, what is "....fair and reasonable in all the circumstances", and providing that the amount does not exceed the rate of 52 x BW. The majority of awards should fall between the middle bracket; (between 15 x BW to 34 x BW). The practice of automatically applying the redundancy payment formula should now cease. If the Panel should decide to use the formula for redundancy payments in calculating the award of compensation, then it should provide reasons and explain why it is doing so.
The pertinent question before this court now is whether it should interfere with the award of the Panel in this particular case. The main argument in favour of intervention is that no reason or explanation has been provided by the Panel to justify adopting the redundancy payment formula and the additional three months pay. The only explanation suggested by Ms Corrin is that it had been standard practice with the Panel in previous cases to calculate the amount of compensation on that basis. If the explanation suggested by Ms Corrin is correct then there is good reason to be concerned about its appropriateness.
Other reasons raised are that the Appellant Authority honestly believed that the General Manager had the over-riding discretion where the Respondent had been subjected previously to notices of "final warning" to terminate his employment without the necessity for setting up a Disciplinary Committee to enquire into his reasons for being absent from work. It was submitted on behalf of the Appellant that this was not deliberate, and that the actions of the Appellant needed to be weighed or balanced with the past experiences that it had had with the Respondent.
It was also submitted on behalf of the Appellant that the amount of compensation awarded was to some extent excessive and did not correctly reflect the circumstances of the case. I think there is some truth in this. When the correct formula under the Unfair Dismissal Act is applied, then the amount of compensation awarded by the Panel to the Respondent is almost equivalent to his basic pay for 8 months; (528 x 1/26 = 20 weeks; 3 months at 4 weeks per month - 12 weeks, total number of weeks basic pay that would have been awarded to the Respondent comes to 32 weeks, divided by 4 is about 8 months). Bearing in mind that the Respondent would have only been entitled to a fortnight's pay in lieu of notice (see clause 2.3 of the General Conditions of Employment for Staff and Stevedores), and taking all other relevant factors into account, I accept the submission of Ms Corrin that the amount of compensation awarded is slightly on the upper scale. A much fairer amount would have been at the rate of 28 x (434 x 12 � 52), which comes to $2,804.30. I accordingly will make an order to vary the amount of compensation awarded by the Panel.
GROUND 4:
"The Panel erred in proceeding to hear the complaint after the Appellant's defence of the claim was prejudiced by:
(i) the failure of the Panel to direct the written complaint to the Appellant's head office;
(ii) the failure of the Panel to grant the Appellant's request to deal with the matter in Honiara:
(iii) the failure of the Panel to hold a preliminary hearing."
GROUND 4(i):
The issue raised here is a procedural one. The records of proceedings did show that the personnel Manager, Glyn Joshua was present at the hearing as the representative of the Authority, and that he did point out that the Notice TDP 1 had not been received, (see page 1 of the records). In spite of this, he did expressly state that he was in a position to proceed with the hearing that day.
The records also showed that the Panel discussed the objection raised by the representative of the Authority, but then decided to proceed with the hearing on two grounds. First, that the representative had indicated to the Panel that he was ready to proceed, and secondly, that the Authority had known about the case several weeks earlier when its representatives called in at the Panel Office. No evidence or submission has been raised in opposition to this comment by the Panel from the Authority's representative. With respect to the submissions of Ms Corrin, there is basically no evidence to show in what way, the defence of the Appellant had been prejudiced by a failure to direct the written complaint to the appellant's head office. This ground must be dismissed.
GROUND 4(ii):
This ground must also be dismissed. There is no evidence to show that even an application had been made at the hearing for an adjournment and for the matter to be transferred to Honiara. The Appellant was represented at the hearing but did not ask for an adjournment. That fault must solely be placed with the Appellant. If the Appellant was concerned with the fact that its witnesses and records were in Honiara, then it should have raised that matter with the Panel at the hearing, rather than saying as was done by its Personnel Manager that he was ready to proceed with his case.
GROUND 4(iii):
This ground with respect must fail. There is no legal requirement for the Panel to hold such a preliminary hearing. The Panel is entitled to set its own procedures as it sees fit. The Appellant had been well aware by a couple of weeks ahead, that the hearing was listed at Gizo and therefore had had ample time to prepare for that hearing. If it wasn't ready, then it should have instructed its representative to make the necessary application. It did not, and I am not satisfied that the failure of the Panel to hold a preliminary hearing prejudicial to the defence of the Applicant
The Panel erred in law in awarding interest and expenses to the Respondent.
The Appellant argues that the Panel had no power to award interest and expenses, under the express provisions of section 7 of the Unfair Dismissal Act 1982. That section reads:
"The amount of compensation that may be awarded by the Trade Disputes Panel under section 6 is such amount as the Panel consider fair and reasonable in all the circumstances, taking account among other things) of the conduct of the employer and the complainant both before and after the date of dismissal."
The crucial question before this court is whether the Panel had acted intra-vires in including interest in the amount of compensation awarded to the Respondent. Did the Panel have the right or power to award interest? Ms Corrin has presented a well researched submission on the powers of the Courts and tribunals to award interest. She pointed out that only courts have common law and equitable powers and jurisdiction. Statutory Tribunals on the other hand, such as the Trade Disputes Panel, are not courts and therefore do not have common law or equitable powers. Unless there is express statutory provision giving such tribunal power to award interest, then such tribunal would be acting ultra vires if it does make an award for interest. I agree.
In Jefford and Another v Gee [1970] 2 All ER 1202, the Court of Appeal clarified that according to the rule of the common law of England, "... in the absence of express agreement, interest could not be recovered on a debt or damages and equity in this respect followed the law". The position was eventually changed with the enacting of the Law Reform (Miscellaneous Provisions) Act 1934, giving Courts of record general powers to award interest where it thinks fit. Before that, interest could only be demanded by virtue of a contract, or where the principal money had been wrongfully withheld (see Caledonian Railway v Carmichael (1870) L.R. 2H.L., Richard and Great Western Railway [1905]1 KB.68; Borthwick v The Elerslie Steamship Company, Limited (No.2) [1905] 2.K.B. 516).
I accept the submission of Ms Corrin that there is no express statutory provision giving the Panel power to award interest. But even if it could somehow be argued that the Panel does have power, it is pertinent to note that the basis of an award of interest is that the defendant had kept the plaintiff out of his money and has had the use of it himself, so he ought to compensate the plaintiff for it. That is not the case here. I am satisfied there is no basis on which the award of interest had been made and must accordingly be set aside.
On the question of expenses, that is a matter directly relevant to the question of the quantum of compensation. Also section 12(3) of the Unfair Dismissal Act 1982, is not exhaustive in its description of the powers of the Panel, and therefore should not be construed restrictively or narrowly.
GROUND 6:
"In the alternative the Panel erred in the rate of interest awarded to the Respondent. "
This has been dealt with and need not be addressed.
"The Panel erred in allowing the Respondent to be represented by Solomon Islands National Union of Workers at the hearing contrary to Rule 11(2) of the Trade Disputes Panel (Unfair Dismissal and Redundancy) Procedure Rules 1983."
The Appellant relies on Rule 11(2) of the said Rules which states:
"At any hearing of, or in connection with, a complaint a party and any person entitled to appear may appear before the Panel and may be heard in person or be represented by Counsel or a Solicitor or the Commissioner of Labour".
Ms. Corrin argues that the above rule is exhaustive in its description of the persons who may represent the Respondent. There is no mention by the rules that representation can be done by someone from the Union Office of which the Respondent may have been a member of.
Mr. Lavery, of Counsel for the Respondent argues to the contrary that Parliament must have envisaged that persons other than parties, may be entitled to appear and be heard, and that Parliament must have had Union representatives in mind. As a matter of practice, he pointed out that the Panel had in the past exercised its discretion to allow Union representatives to appear on behalf of its members.
With respect to the submissions of Mr. Lavery, there is a clear difference, as correctly pointed out by Ms Corrin in her submissions, between a right to appear and a right to represent a person appearing. The Union may have a right to appear, but not the right to represent the Respondent. The records showed that the Respondent had indeed been represented by the Union representatives who had no right in law to represent him. That was clearly an error committed by the Panel. However, it must be borne in mind that the error committed was not deliberate; more of a mistaken belief that the Union representatives could appear on behalf of the Respondent. The crucial issue before me now is whether such error in representation, fatal to the findings of the Panel, to the extent such that it should be overturned. With respect, there is no evidence to show that the Appellant was at a disadvantage. The Appellant knew well in advance (by as much as several weeks) about the hearing at Gizo, but did not take up the opportunity to engage a Solicitor for that hearing. It did not ask for an adjournment and did not raise any objection to the Union representative's presence. To the contrary, its representative indicated that it was in a position to proceed with its case that day. That is hardly, with respect, the plight of a person that was placed in a disadvantageous position. I am accordingly not satisfied that the error committed above is such that it would justify this Court in interfering with the substantive findings of the Panel.
"The Panel erred in law in failing to announce their decision in public or to obtain the consent of the parties to the delivery of the same by post contrary to section 10(9) of the Constitution. "
Ms Corrin argues that there has been a breach of section 10(9) of the Constitution which states that:
"except with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence of extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court of other authority, shall be held in public."
It is significant however, that at page 4 of the records of proceedings of the Panel, there is a statement by the Panel in which it stated that it "will issue a written decision in due course." It is not clear whether this statement of the Panel was made with the consent of the parties or not. Normally, if a written decision is to be handed down and delivered by post, the consent of the parties would have first been obtained. But even if such consent had not been obtained, it is significant in my view that at least both parties were informed by the Panel as to the mode of delivery of the judgment. If the Appellant did not agree with that then it should have raised an objection at the hearing itself, or raise an objection at a later date and make it clear that the decision should be delivered in the normal manner in public. The decision was not given until 11 September, 1990, and so there would have been ample time to raise an objection. The Appellant did not do that, and it is now rather late to raise such an objection. I am not satisfied that this ground raises any matter of significance that would warrant interfering with the decision of the Panel. This ground must also be dismissed.
ORDERS OF THE COURT
1. Decision of Panel upheld.
2. Award of compensation varied as follows:
(i) set aside the Panel's award of $3,335.89 and substitute with the award of $2,804.30;
(ii) set aside interest of 15%;
(iii) confirm expenses of $100.00; (Total amount of compensation payable therefore is $2,904.30).
3. Costs in favour of the Respondent.
GROUND 1. The Panel erred i in awarding interest to the Respondent. This This Court's statements in dealing with Appeal Ground 5 in Civil Case 180/90 equally apply here.
GROUND 2. In the alternative the Panel erred in the rate of interest awarded to the Respondent.
Not necessary to answer in view of the way this Court had ruled that the Panel had no jurisdiction to award interest
GROUND 3. The level of compensation awarded to the Respondent was excessive and in particular the Panel erred in awarding three months gross salary to the Respondent in addition to the redundancy payment.
I have already indicated clearly in Civil Case 180/90 that the mechanical application of the redundancy payment formula and the three months additional pay, wrong in principle, though I accept that the results may be about right. This would be one of those cases where the mechanical application of the above stated formula has produced fortunately, the right results. The amount of $720.71 obtained from the application of the above formula is about equivalent to 27 weeks basic wages of the respondent.
Taking into account the findings of the Panel as contained in page 1 of its decision, I see no reason to interfere with the amount of compensation awarded. As indicated in the judgment in Civil Case 180/90, the rate of 27 x BW is well within the average range of compensation payments that may be expected, bearing in mind the circumstances as found by the Panel. I do not agree with the submission by Ms Corrin that the amount awarded in this case is excessive.
The award of expenses is confirmed as payable and correctly included in the award of compensation.
GROUND 4. The Panel erred in law in awarding expenses of travel and accommodation to the Respondent in respect of the hearing.
This has been dealt with above and need not be addressed.
GROUND 5. The Panel erred in allowing the Respondent to be represented by Solomon Islands National Union of Workers at the hearing contrary to Rule 11(2) of the Trade Disputes Panel (Unfair Dismissal and Redundancy) Procedure Rules 1983.
See appeal Ground 7 in judgment in Civil Case 180/90
GROUND 6. The Panel erred in law in failing to announce their decision in public or to obtain the consent of the parties to the delivery of the same by post contrary to section 10(9) of the Constitution.
Again see appeal Ground 8 dealt with in the judgment in Civil Case 180/90
ORDERS OF THE COURT
1. Decision of the Panel upheld.
2. Award of compensation confirmed, save the award of interest of 15% which is hereby set aside.
2.1. Award of expenses of $100.00 confirmed. (Total amount of compensation payable: $820.71).
3. No order for costs.
A. R. PALMER,
JUDGE
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