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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 97 of 1998
SOLOMON TELEKOM COMPANY LIMITED
-V-
TRADE DISPUTES PANEL
High Court of Solomon Islands
(Kabui, J.)
Hearing: 29 November 2001
Judgment: 8 January 2002
Mr J. Sullivans for the Appellant
Mr A. Radclyffe for the Respondent
JUDGMENT
Kabui J: This is an appeal by Solomon Telekom Company Limited (the Appellant) against the decision of the Trade Disputes Panel (the Panel) made on 3 November 1995 and 19 May 1998. This appeal was brought under section 13 of the Trade Disputes Act (Cap. 75). The appeal seeks to set aside the whole or part of the decision as the case may be of the Panel with costs. The decision of the Panel was that the Appellant had unfairly dismissed the Respondent and it ordered the Appellant to pay the Respondent $11,868.94 compensation and $500.00 as costs. The grounds of appeal are these –
The Facts
The Respondent had been in the employment of the Appellant since 1989. The position he held at the time of termination of his employment was Engineer, Earth Station. It was a senior position in the Appellant’s Staff establishment. This position was an important one. It involved supervision of the Earth Station facilities through which all international telecommunication signals were sent and received. International calls and faxes would not operate if the Earth Station was for some reason faulty. Specifically, he was responsible for the maintenance of the Earth Station and supervision of technical staff. On a daily basis, he was expected to be on – call to attend to urgent repair work and to check on the Earth Station equipment. He was expected to communicate with his superior, the Senior Engineer, Satellite and Radio and to appraise management of any problems that could arise. He was also expected to carry out orders issued by the Appellant and to obey rules laid down by the Appellant. As early as 1991, he was found to be at fault with the use of a vehicle owned by the Appellant for which he was penalised. This incident took place in May, 1991. By letter dated 8 May 1991, the Respondent wrote to the General Manager complaining that he was being victimised by the Management. The Respondent wrote further memoranda to his immediate superior in which he explained his position. By the end of 1993, the Respondent’s immediate superior was convinced that the Respondent could no longer improve his attitude. It was at this stage that the Respondent was called upon to face the Disciplinary Committee on 18 November 1993 at 9 am in the Appellant’s Conference Room. The Disciplinary Committee convened on 18 November 1993. It comprised four persons including the Chairman. The Chairman of the Staff Association was on leave that time. He was not able to attend the hearing conducted by the Disciplinary Committee. When the next most senior person was invited to attend, he refused. The Respondent however attended and defended himself at the hearing. The Disciplinary Committee decided to terminate his employment and did so accordingly. He was informed of that decision by letter dated 19 November 1993, the next day.
The Point of Law Argument
Counsel for the Respondent, Mr. Radclyffe, in his written submission pointed out that under section 13 of the Trade Disputes Act (Cap. 75) appeal to the High Court could only be made on a question of law. I agree. Counsel for the Appellant, Mr. Sullivan, did not dispute it. Having said that, Mr. Radclyffe argued in his written submission that the question of sufficiency of evidence was not a point of law. Mr. Radclyffe however did not cite any authorities to support his argument but said that in any case, the Panel had heard detailed evidence and acted on it correctly. What then is a point of law? This issue was raised in Instrumatic Ltd –v- Supabrase Ltd [1969] 1 W.L.R 519 where Lord Denning, M.R. at page 521, said:
“The official referee made an order dismissing this action for want of prosecution. The plaintiffs seek to appeal to this court. The defendants take a preliminary point. They say that an appeal to this court lies only on a point of law: and that there is no point of law here. The official referee, they say, exercised his discretion: and the manner of its exercise is not a point of law.
There are many tribunals from which an appeal lies only on a “point of law”: and we always interpret the provision widely and liberally. In most of the cases the tribunals find the primary facts (which cannot be challenged on appeal): and the question at issue is what is the proper inference from those facts. In such case, if a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law, and its decision can be reviewed by the courts. That was settled, once and for all, in Edwards (Inspector of Taxed v, Bairstow [1955] UKHL 3; [1956] A.C. 14. In other cases the question is whether, given the primary facts, the tribunal rightly exercised its discretion. In such cases, if the tribunal exercises its discretion in a way which is plainly wrong, it errs in point of law, and its decision can be reviewed by the courts. The courts can review the discretion of a tribunal, just as it can review the discretion of a judge in chambers, and on like grounds. The principles stated in Ward v. James [1966] 1 Q.B. 293, apply as much to the discretion of a tribunal as to the discretion of a judge.”
With this, Edmond Davies L.J and Phillimore L.J. agreed.
I would place emphasis on the statement by Lord Denning MR in the above quote that any provision permitting an appeal on a point of law is always interpreted “widely and liberally”, to use His Lordship’s own words. This statement is clearly a reflection of the effect of the view expressed by the House of Lords in Edwards (Inspector of Taxes) –v- Bairstow and Another [1955] UKHL 3; [1955] 3 AER. 48, particularly in the judgment by Lord Radcliffe.
At page 57, Lord Radcliffe said,
“When the case comes before the court, it is its duty to examine the determination having regard to its knowledge of the relevant law. If the Case contains anything ex facie which is bad law and which bears on the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law, and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination, or as one in which the evidence is inconsistent with, and contradictory, of, the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when, in cases such as these, many of the facts are likely to be neutral in themselves and only to take their colour from the combination of circumstances in which they are found to occur.“
Again, at page 59, Lord Radcliffe said,
“As I see it, the reason why the courts do not interfere with commissioners’ findings or determinations when they really do involve nothing but questions of fact is not any supposed advantage in the commissioners of greater experience in matters of business, or any other matters. The reason is simply that, by the system that has been set up, the commissioners are the first tribunal to try an appeal and, in the interests of the efficient administration of justice, their decisions can only be upset on appeal if they have been positively wrong in law. The court is not a second opinion, where there is reasonable ground for the first. But there is no reason to make a mystery about the subjects that commissioners deal with, or to invite the courts to impose any exceptional restraints on themselves because they are dealing with cases that arise out of facts found by commissioners. Their duty is no more than to examine those facts with a decent respect for the tribunal appealed from and, if they think that the only reasonable conclusion on the facts found is inconsistent with the determination come to, to say so without more ado.”
It is therefore permissible for a Court of Appeal to examine the evidence produced before the tribunal etc and its conclusion upon the evidence before it and decide whether its conclusion is consistent with the evidence upon which it made its decision. I can now move on to the Panel’s decision.
The Panel’s Decision
The Panel’s decision was based upon three grounds. The first being that the composition of the Disciplinary Committee which sat on 18 November 1993 was defective in that it sat without the representative of the Senior Staff Association. The second reason was that the memorandum dated 17 March 1986 written by Mr. Jones to the Respondent, the vehicle misuse on 7 May 1991 and the memorandum written by Mr. McCarthy dated 18 November 1991 were all out of date and irrelevant evidence which ought not to have influenced the decision of the Panel. The third reason was the contradiction between the Respondent’s salary increase in 1993 accompanied by congratulatory remarks by the management and the allegation that the Respondent was lacking in good conduct and competence.
The Disciplinary Committee
The setting up of the Disciplinary Committee was part of the terms and conditions for senior staff as agreed between the Management and a senior staff representative on 7 October 1992. As a broad guideline, the terms and conditions for general staff would apply equally to senior staff as well except as varied by the agreement signed on 7 October 1992. The terms and conditions of service for general staff were part of a Collective Agreement signed by the Management and the Union on 18 September 1992. This Collective Agreement would have also applied to senior staff in so far as disciplinary procedure was concerned because none existed for senior staff under that Collective Agreement.
Another Collective Agreement was signed between the Management and the Union on 5 November 1993 setting out the terms and conditions of service for the general staff. Clause 15.4.1 of that Collective Agreement also provides for a Disciplinary Committee. The check-off system for the deduction of union fees under the Collective Agreement signed in 1993 does not apply to the Respondent because his name was not included in the list of names set out in clause 17.1 in that Agreement. So the position in 1993 was that the Collective Agreement in 1993 would apply only to the senior staff where the terms and conditions signed on 7 October 1992 were lacking. In other words, the variations benefiting senior staff signed on 7 October 1992 continued to apply to senior staff under the Collective Agreement signed in 1993. The fact however is that no disciplinary procedure for senior staff members existed in the terms and conditions signed on 7 October 1992. This fact therefore meant that the Disciplinary Committee set up under the Collective Agreement in 1993 would apply to senior staff members.
Composition of the Disciplinary Committee
The members of the Disciplinary Committee are drawn from both the Management and the Staff Association representing the senior staff. Representing the Management on the one hand, are the Chairman, Head of the appropriate Department and the Immediate Supervisor.
Representing the Staff Association are the Chairman of the Staff Association plus one other of their members, on the other hand. The Disciplinary Committee consists of five members, three of whom represent the Management being the majority in the Disciplinary Committee.
The Decision of the Disciplinary Committee
According to the Minutes of the hearing conducted on 18 November 1993 by the Disciplinary Committee, there were four persons who were members of the Disciplinary Committee. The Management was represented by Mr. Hilly being the Chairman and Mr. Johnson being the Head of Engineering Department. The Staff Association was represented by Messrs Misi and Beneteti. The Immediate Supervisor as part of management representation was not represented at that hearing. That is to say, Mr. Newman was not present. The Chairman of the Staff Association was likewise absent at that hearing. The fact that the Staff Association was represented by Messrs Misi and Beneteti did in fact satisfy the quota of two members representing the Staff Association. True, the Chairman of the Staff Association was not there in person but either Mr. Misi or Beneteti did stand in for him at the hearing unlike the Immediate Supervisor whose place remained vacant at the hearing. According to the Minutes, the Respondent was present in person at the hearing and defended himself. He did not object to the inclusion of Messrs Misi and Beneteti who represented the Staff Association. According to the General Manager, Mr. Robinson, there was no need in this case for Union representation because the Respondent was not a member of the Union (see page 156 of the Appeal Record). It would seem that the practice was that in any case where discipline was being taken against a Staff member, his peers would have to be represented on the Disciplinary Committee by the Chairman of the Staff Association and one other of their members who are not necessarily members of the Union. Union representation was not therefore a pre-requisite in this case. Both the Senior Staff Terms and Conditions signed on 7 October 1992 and the Collective Agreement singed in 1993 failed to clarify this point. The reasons upon which the Disciplinary Committee decided to terminate his employment were his long standing negative attitude and non-commitment to his duties as Engineer, Earth Station. The decision reached by the Disciplinary Committee appears to have been unanimous. The Minutes do not record any dissent. In fact, the majority of the members were Solomon Islanders. The decision was obviously reached by all the members attending and voting at the hearing. It was a majority decision because there was one vacancy on the side of the Management. Although no quorum is prescribed, four members deciding in the absence of one member is more than any quorum that may have been prescribed. Even discounting the attendance of the Chairman of the Staff Association, the decision would still have been by a majority of three against two vacancies. As I have said, there was no vacancy on the side of the Staff Association because two of their members were present at the hearing. The fact that their Chairman was absent did not really matter because the Staff Association was fully represented at the hearing. They could have supported the Respondent and called for an adjournment of the hearing but they did not. There was no case of denial of natural justice in this case. The Respondent had said all he had to say at the hearing. If the Disciplinary Committee were governed by an Act of Parliament, section 31(1) of the Interpretation and General Provisions Act (Cap. 85) would have applied in that where an act or thing may be or required to be done by more than two persons, a majority of them may do it in the absence of a quorum. Likewise, if the Disciplinary Committee were a body set up by an Act of Parliament, section 40(a) of the Act cited above would have applied in that a decision made would not be invalid only by reason of vacancy or vacancies in the membership of the body. The principles contained in these two sections are of general application and they do have the smack of common sense. I would apply them in this case.
The Panel clearly erred in law in holding that the absence of the Union representative had the effect of invalidating the decision of the Disciplinary Committee.
The second ground of appeal is broad and can be divided into three basic complaints. The first is the exclusion of evidence concerning complaints made against the Respondent in 1986 and 1991 as being out of date and irrelevant to the immediate reasons for his dismissal. The second is the contradiction between the penalty of suspension and final warning and the increase of salary in 1993 with congratulating remarks from the Management about a job well done. The third was that on the whole, the decision of the Panel was inconsistent with or against the weight of evidence against Respondent.
At the outset, it is important to note that the Minutes of the Disciplinary Committee hearing on 18 November 1993 were brief only in nature and the reasons for dismissal were stated as “long standing negative attitude and lack of commitment towards his job”. The documents on record cited by the Disciplinary Committee were the following –
The oral evidence given by the Respondent was based upon his replies dated 10 and 20 November 1993. He did however admit that the band-width on the HPA was not done since the departure of his predecessor which meant since he became the Engineer, Earth Station in September, 1992. No reference was made to the memorandum dated 17 March 1986 at the hearing by the Disciplinary Committee on 18 November 1993. The analysis of the evidence by the Trade Disputes Panel in its own decision made no reference whatsoever to the memorandum dated 17 March 1986. The reference to this memorandum at page 6 of the Panel’s decision is a mystery in that it did not feature in the Disciplinary Committee’s hearing on 18 November 1993 nor in the hearing before the Panel in 1995. It is a non-issue and is left to rest where it is in this appeal. The reference to the suspension and final warning issued against the Respondent in 1991 in respect of the use of vehicle No. A1103, would be relevant evidence against the Respondent in terms of the assessment of work attitude in general terms. It might have been of less significance in terms of repeated misconduct of the same nature as that particular misconduct had already been penalized by a suspension and a final warning. The reference to the memorandum dated 18 November 1991 was in my view, very relevant because it is evidence of negative work attitude and the beginning of signs of incompetence. This memorandum of 18 November 1991 was later referred to in a memorandum by the General Manager dated 9 January 1992 in which the Respondent was told to comply with the requests made of him by Mr. McCarthy, his immediate superior. In his memorandum dated 1 November 1993, Mr. Newman, again reminded the Respondent of his omissions and his lack of communication with his superior in the past and then. In his later memorandum dated 8 November 1993, Mr. Newman again complained to the Manager, Engineering, of the Respondent’s lack of improvement in his general attitude towards his duties and areas of responsibility. By a memorandum dated 11 November 1993, the Manager Engineering Mr. Johnson, wrote to the Respondent and informed him that he would have to face a disciplinary hearing by the Disciplinary Committee. The Respondent was notified by a memorandum dated 16 November 1993 and the hearing took place on 18 November 1993. This series of correspondence did form the record of the Respondent’s work record as known by his superiors. The memorandum dated 18 January 1991 is significant in one respect. It was the culmination of previous numerous verbal requests that the Respondent had ignored and failed to obey. The matters of concern were set out in that memorandum addressed to the Respondent about which he did nothing which obviously necessitated further reminders and finally disciplinary action. It is therefore naïve to say that the memorandum dated 18 January 1991 is out of date and irrelevant piece of evidence against the Respondent. No doubt the Panel placed weight on the contradiction between the increase in salary in 1993 accompanied by congratulatory remarks and the negative view held against the Respondent by his superiors. The fact was that the Respondent had improved in 1993 but declined again into his old attitude after October 1993. Mr. Hilly explained that the job appraisal done in early 1993 was for all staff members including the Respondent. He said the circular letter of 5 October 1993 should have been out in April, 1993 but due to work load, it was not sent out until 5 October 1993. (See page 8 of record of hearing on 30 June 1995). Mr. Robinson, the General Manager, confirmed this fact. (See page 2 of the record of hearing on 18/10/95). Since a former General Manager, Mr. Gabriel wrote to the Respondent on 9 January 1992 about his work attitude, the present General Manager Mr. Robinson, had not known about the Respondent’s case until he was informed of the Disciplinary Committee’s decision by an internal memorandum dated 19 November 1993 written and signed by Mr. Hilly, the Chairman of the Disciplinary Committee which terminated the Respondent’s employment. The salary revision circular letter that Mr. Robinson signed on 5 October 1993 must therefore have reflected the fact that the circular letter was the result of a job appraisal for all staff members and there was no reason for the Respondent to miss out prior to October, 1993. It must have been assumed all was well with Respondent until Mr. Newman picked the matter up again in writing on 1 November 1993. Mr. Newman was the Successor to Mr. McCarthy who had written to the Respondent on 18 November 1991 about the same matters. Apparently, the Respondent had not been up to standard expectation since Mr. McCarthy reminded him in 1991. I consider him lucky that he was included in the general salary review for all staff in early 1993. Paragraph 13 of the affidavit filed by Mr. Johnson on 17 October 1995 explains the truth in these terms, “Further, the 3.0% performance payment was assessed without the knowledge of the existence of the general standard of the Earth Station (that it had deteriorated to a hazardous level). The state of the condition of the station was detected only in May 1993. Despite the detection in May, the Respondent allowed Mr Kuper a six months period from May 1993 to November 1993 to correct the defects.” I would place no weight on what appears to be a contradiction in this regard because the 3% performance payment had already been approved prior to the discovery of the defects in the Earth Station in May 1993. There was therefore no contradiction between the salary revision circular letter dated 5 October 1993 and the Respondent’s failure to correct the defects within the 6 months given to him to correct them. It might have been the case that some of the defects discovered could have existed before the Respondent became the Engineer, Earth Station, but he being the Engineer must correct them. He could not and should not side-step them by blaming others and giving excuses to justify his inability to perform his duty as Engineer, Earth Station.
In the same affidavit filed on 17 October 1995, Mr. Johnson, the Head of Engineering Department who was a member of the Disciplinary Committee explained the reasons for that Committee deciding to terminate the Respondent’s employment in the following paragraphs –
These paragraphs do speak for themselves. They need no further explanation
The Unfair Dismissal Act (Cap. 77)
Section 2(1) of the Unfair Dismissal Act states:
“Subject to the following provisions, every employee has the right not to be unfairly dismissed by his employer”
Then section 4(1) of the Act states:
“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; and
(b) in all the circumstances, the employer acted reasonably in treating that reason as sufficient for dismissing the employee.”
What then was a substantial reason of a kind such as to justify the dismissal of the Respondent holding his position as Engineer, Earth Station?
If I can summarise the reasons, they were these. There was evidence of long standing negative attitude held by the Respondent towards his superiors and an attitude of non-commitment towards his duties and responsibilities as Engineer, Earth Station. This attitude was not therefore compatible with the nature of his job and the enhancement of efficiency in the field of telecommunication service for which the Appellant is primarily responsible. This was in my view a substantial reason within the meaning of section 2(1)(a) of the Unfair Dismissal Act cited above. The word “substantial” is defined by the Oxford Advanced Learner’s Dictionary, 4th Edition by A.P. Cowie as “large in amount; considerable; solidly or strongly built or made; concerning the most important part of something; essential; having physical existence, not merely seen, heard or imagined; real.”
In re Net Book Agreement, 1957 [1962] 1 WLR 1347, Buckley, J. at page 1377 said,
“......The term “substantial” is not one, in our judgment, which demands a strictly quantitative or proportional assessment, nor is it a term the meaning of which it would be wise for us to attempt to define. Our duty, we think, is to consider the evidence which has been brought before us, and bearing in mind such criticisms as have properly been made of it... to decide as best we can upon that evidence .....”
Section 4(1)(b) also requires that in all the circumstances, the employer acted reasonably in treating that reason as sufficient for dismissing the employee. In this case, there was evidence that the Respondent’s negative attitude began to surface following his misuse of vehicle No. A1103 for which he was penalized. As regards fulfilling directives from his superior, he was reminded as early as in March, 1986 that he was having problems in performing technical work in the Earth Station. In fact paragraph 6 of that memorandum contained some doubt in the Chief Engineer’s mind about the Respondent’s suitability for technical discipline and queried whether or not the Respondent should not be better off in the commercial or administrative discipline. There was no response from the Respondent to this memorandum. The Respondent’s response on 10 and 20 November 1991 to subsequent memoranda by his superior contained demeaning and insulting remarks about his superior, Mr. McCarthy. That is to say that in November 1991 he again was reminded of his duty as Engineer Earth Station to report to his superior. In January 1992, he was again reminded of his responsibilities by the General Manager who asked him to co-operate with his superior. He was also told that he owed his superior, Mr. McCarthy an apology. There was a lull until May 1993 when defects were discovered in the condition of the Earth Station. The matters raised had been pointed out to him that required correction. Things came to a head when Mr. Newman, Mr. McCarthy’s successor, reviewed the situation again on 1 November 1993. Mr. Newman made no bones about the need to review the Respondent’s position as Engineer, Earth Station, in view of his response which Mr Newman viewed as extremely disappointing. A further memorandum in response by the Respondent showed no sign of change of attitude by him towards his superior. On 8 November 1993, Mr. Newman reported to the Manager, Engineering, that the Respondent had shown no improvement in his attitude towards his duties and cited an example of the lack of monthly situation report since May 1993. By 11 November 1993, the Respondent was told that he would have to face disciplinary proceedings at a date to be fixed. In my view, the Appellant had acted reasonably in all the circumstances so as to satisfy the reason for acting as it did being substantial to terminate the Respondent’s employment.
Having said that, I would be wrong if I am simply substituting my view for that of the Panel without any good reason. This is because the tribunal acting within jurisdiction would normally have absolute discretion to decide the matters before it. (see Ward –v- James [1965] 1 A.E.R. 563). However, the discretion is not necessarily absolute and the Court of Appeal may intervene where it is satisfied that the tribunal was wrong or where the tribunal did not give weight or sufficient weight to considerations which would have been given weight by it (see page 570 of Ward –v- James cited above as per Lord Denning, M.R.). In other words, the Court of Appeal is entitled to exercise a fresh discretion in such cases (see H. v. Ministry of Defence [1991] 2 WLR 1192).
In terms of section 6(6) of the Unfair Dismissal Act (Cap. 77), the Appellant had shown what the reason was for dismissal. However, no weight was placed upon the evidence produced against the Respondent because of (i) the view taken by the Panel of the absence of the Chairman of the Staff Association thus invalidating the proceedings of the Disciplinary Committee (ii) the treatment of the memoranda dated 17 March 1986, 7 May 1991 and 18 November 1991 as being out of date and irrelevant to the main reason for dismissal and (iii) the view that the suspension as a final warning in 1991 and the award of a salary increase in 1993, accompanied by congratulatory remarks amounted to a glaring contradiction. The combined effect of these observations by the Panel was that there was no substantive evidence to prove the allegations of misconduct and incompetence against the Respondent. The effect of the absence of the Chairman of the Staff Association on the decision of the Disciplinary Committee was a legal point. There was no question of denial of natural justice in this case because the Respondent defended himself in person before the Disciplinary Committee on 18 November 1993. I do not know what the chairman of the Staff Association could have said in defence of the Respondent. There was also one vacancy on the side of the management. The whole of the evidence was on matters pertaining to professional and technical matters regarding the operation of the Earth Station. As a matter of fact the Union was represented by Messrs Misi and Beneteti. I do not think the absence of the Chairman of the Staff Association was fatal in law to the validity of the proceedings of the Disciplinary Committee. No evidence was produced to show that the Staff Association was a registered Trade Union so as to lead to the conclusion that the Collective Agreement signed on 5 October 1993 had the effect of law under section 12 of the Trade Disputes Act (Cap. 75). The Senior Staff Terms and Conditions signed on 7 October 1992 was not part of the Collective Agreement signed in 1993 above. As I have said earlier in this judgment, I would apply the principles in sections 31(1) and 40(a) of the Interpretation and General Provisions Act to this case. The Panel therefore as I have said, erred in law by holding that the proceedings of the Disciplinary Committee was of no effect by reason of the absence of the Chairman of the Senior Staff Association. As regards the treatment of memoranda of 17 March 1986, 7 May 1991 and 18 November 1991 as being out of date and irrelevant evidence against the Respondent, the position is this. As I have said earlier in this judgment, there is no evidence to show that this memorandum of 17 March 1986 was used as evidence against the Respondent at the hearing by the Disciplinary Committee on 18 November 1993. When one considers the employment record of the Respondent, memorandum dated 7 May 1991 became relevant in terms of knowing about his attitude towards his superiors over the years. It is also evidence of the existence of a final warning against the Respondent. Memorandum dated 18 November 1991 was relevant evidence because it showed the beginning of the signs of non-compliance with verbal directives from his superior which were later reduced to writing in subsequent reminders. I find that the Panel erred in law by excluding this evidence from its consideration and thus giving it no weight at all. As regards the contradiction of evidence referred to above, the explanation was that apart from there being a lull of improvement and the letter dated 5 October 1993 being a standard circular letter, the true position was that the salary increase in 1993 was done without the knowledge of the existence of the declining standard of the Earth Station to a dangerous level. (see para. 13 of Mr. Johnson’s affidavit referred to above). Realistically, the salary increase plus the congratulatory remarks meant nothing in so far as the Respondents’ superiors were concerned. No weight ought to have been placed on this evidence as being in favour of the Respondent. I find that the Panel erred in law in placing weight on this evidence in favour of the Respondent. The evidence produced by the Respondent was basically a repeat of his response dated 10 and 20 November 1991 to the memorandum dated 18 November 1991 written by Mr. McCarthy and another dated 10 November 1993 to Mr. Newman’s memorandum written on 1 November 1993. His evidence can only be described as explanatory but tinted with excuses and sarcasm to the point of being self-righteous. He was also trying to put forward the view that things could be done his way so long as the result was correct and would not accept anything which he considered as undue criticism of himself and his work. In this case, his superiors must be assumed to know better than him and that must be the reason for being supervised by Mr. McCarthy followed by Mr. Newman. If his skill required up-grading to suit him best for his position, the Appellant was ready and willing to sent him overseas for further training. In fact, this was the case but he refused to undergo a suggested further training. For him to continue unsupervised or with minimum supervision only would not be in the interest of the Appellant. He would either have to improve his performance or he would have to go. The interest of the Appellant in providing good and efficient telecommunication service in Solomon Islands must take top priority in that sort of situation. That is exactly what happened in this case. The Respondent had to go for the stakes for keeping him unchanged in his attitude was too high for the Appellant. I would have placed no weight on the Respondent’s evidence. I have therefore come to the conclusion that this appeal should be allowed. I order that the decision of the Panel be quashed in whole and the decision of the Disciplinary Committee made on 18 November 1993 be affirmed. Cost will be cost in the appeal.
F.O. Kabui
Judge
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