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Russell Islands Plantation Estates Ltd v SI National Union of Workers [2010] SBHC 3; HCSI-CRAC 557 of 2005 (18 February 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No. 557 of 2005

BETWEEN:

RUSSELL ISLANDS PLANTATION ESTATES LIMITED
Appellant

AND:

SI NATIONAL UNION OF WORKERS
Respondent

Date of Hearing: 14 December 2009
Date of Decision: 18 February 2010

Mr Nori for Appellant
Ms Bird for Respondent

DECISION ON APPEAL AGAINST AWARD OF TRADE DISPUTES PANEL

Cameron PJ:

1 This is an appeal under section 13 of the Trade Disputes Act against an award of the Trade Disputes Panel (TDP) delivered on 28 October 2005.

2 Under that award, the TDP recommended reinstatement of various employees which the appellant Russell Islands Plantation Estates Ltd (Ripel) as their employer had dismissed. It also recommended that the Ripel Board terminate the employment of the company’s General Manager, Mr. John Whiteside.

3 Ripel argues that the TDP had no jurisdiction to recommend reinstatement of its workers. It says that "since there was no complaint lodged by the dismissed employees before the Panel, it has no jurisdiction to inquire into and make findings on whether or not they were unfairly or unlawfully dismissed". In other words, it was contended that the only way the workers could challenge their dismissal was by lodging a complaint pursuant to the Unfair Dismissal Act and having the complaint dealt with according to the procedure laid down in that Act.

4 To ascertain whether the TDP was properly seized of the issue of alleged unfair dismissals, it is necessary to examine what was referred to it, as well as its powers. Ripel and the respondent Solomon Islands National Union of Workers (the Union) had previously referred a trade dispute to the TDP raising a number of matters in contention between the parties. After hearing that dispute the TDP, pursuant to section 6(1) of the Trade Disputes Act, made an award dated 21 May 2004.

5 One of the issues in contention in that trade dispute was "(i) The continuation of unfair dismissal of workers of copra cutters". As to that, the award stated, para. (i), "The union in its written submission had indicated that this issue had been amicably resolved between the parties." Thus no ruling on this point was necessary. Similarly, a further point in contention between the parties had been "(k) General Attitude of the General Manager of RIPEL". As to this, the award stated, p2, "the panel notes that...(k) had been amicably resolved between the parties". Thus no ruling was necessary in respect of that issue either.

6 It is apparent from the material contained in the agreed Casebook that on or before 21 May 2004, the day the award was made, Ripel dismissed the Union’s chairman, Morsley Hapa, along with 3 other Ripel employees. This prompted the Union by a letter dated 20 May 2004 to serve notice on Ripel of strike notice from 18 June 2004 (p 155 Casebook). The letter was clearly directed at the removal of John Whiteside as General Manager, as it states: "The recent sacking of RIPEL’s Union Chairman, Morsley Hapa, has left SINUW with no option but to issue you with a 28-days strike notice if John Whiteside is not removed immediately as the General Manager of RIPEL."

7 Ripel’s response to this was to apply to the TDP for a review of its 21 May 2004 award. The award which then followed (28 October 2004) described this application in this way:

"In that award however the Panel did not make any finding on the issue of the removal of the General Manager as well as a couple of other issues as they were understood to have been amicably settled between the parties.

About a week later, after the award was delivered to the parties, however, the applicant by letter dated 1/6/04 applied for a review of that award (in particular the issue of the removal of the General Manager) under Rule 10(1)(b) of the Trade Disputes Panel Rules. The review became necessary apparently because the union had again threatened to take industrial action over the same issue, that is, the issue of removal of the General Manager".

8 Having referred the matter to the TDP by letter dated 1 June 2004, on the every next day 2 June 2004 Ripel dismissed no less than 10 employees on the stated grounds of failure to meet daily targets for the harvesting of copra (pp 156-165 Casebook).

9 The review was to proceed before the TDP on 18 June 2004, but could not proceed then because the industrial action which had been threatened had begun. Ultimately it was heard before the TDP on 27 August 2004, and an award made on 28 October 2004.

10 It is apparent from the TDP’s description of the application for review that the central issue referred to it by Ripel was "the issue of removal of the General Manager". Once it was seized of that issue, the TDP was required to inquire into it (section 6(1) Trade Disputes Act). In doing so, the TDP was also required to take account of the interests of other parties to the dispute, and also the likely effect of the award on other persons and the economy as a whole (section 6(4) of the Trade Disputes Act). Of course, of direct interest to the other party to the dispute (the Union representing the dismissed workers) was the fairness or otherwise of their dismissals. That had a direct bearing on the central issue as to whether there was validity in the Union’s claim that John Whiteside, the instigator of the dismissals, was unsuitable to remain as General manager.

11 Having been seized of the central issue as to whether or not John Whiteside was suitable to remain as General Manager, the TDP had a duty to inquire into all factors that may have had a bearing on that issue, and of course the fairness or otherwise of those dismissals was fundamental to this. Thus in referring that question to the TDP, Ripel itself invited an inquiry into the complaints the Union and its workers had against the General Manager. As part of that inquiry, it was necessary for the TDP to decide whether or not the dismissals were unfair, for that decision had a direct bearing on an appraisal of the General Manager’s conduct.

12 The TDP’s decision, after hearing the evidence, that the dismissals were unfair, and that the workers ought to be reinstated, was within the powers of the TDP. I have already referred to the wide powers conferred on the TDP under section 6 of the Trade Disputes Act. I also refer to the Act’s Schedule, which defines the term ‘Trade disputes’ as including "(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more employees".

13 The fact that the dismissed workers did not file a complaint under the Unfair Dismissal Act did not prevent the TDP from considering the fairness of the dismissals. The Court of Appeal case of Earthmovers (Solomons) Ltd and Others v. Solomon Islands National Union of Workers CA 10/1998, 23 December 1998 held that the TDP has the power to reinstate workers, under the Trade Disputes Act, notwithstanding that the Unfair Dismissal Act only contains the power to recommend reinstatement (section 6(4) Unfair Dismissal Act). In any event, the award of 28 October 2004 was limited to a recommendation of reinstatement.

14 For these reasons, I hold that the TDP did have the jurisdiction to decide that the dismissals in question were unfair.

15 Another ground of the appeal is that the TDP erred in law in failing to recognise that Ripel had the power to regulate the number of employees it had at any one time including by termination of employment, and to dismiss employees who failed to meet daily copra cutting targets. It was argued that the General Manager, in carrying out the dismissals, was merely doing his duty of applying the terms of the Collective Agreement, and that his suitability could not be called into question on that account.

16 This ground overlooks the fact that while the Collective Agreement conferred rights of dismissal on Ripel, Ripel had to exercise those rights in a manner which did not result in an unfair dismissal. That means that Ripel was obliged in each case to act reasonably in deciding whether or not the circumstances warranted a dismissal. I refer to Halbury’s Laws of England on Employment, 4th Edition, Vol 16(1B), para 640, which states:

"...the determination of the question whether the dismissal is fair or unfair, having regard to the reason shown by the employer:

(i) depends on whether in the circumstances, including the size and administrative resources of the employer’s undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(ii) must be determined in accordance with equity and the substantial merits of the case".

17 In my view the TDP was entitled, as it did, to hear evidence from the dismissed employees, and indeed from John Whiteside, as to the individual circumstances of the dismissals. It was then entitled to decide whether or not the dismissals were fair in all the circumstances, notwithstanding Ripel’s rights contained in the Collective Agreement. I do not consider that the TDP has adopted the wrong approach in so doing, and reject Ripel’s contention that the provisions of the Collective Agreement were determinative of the matter.

18 Of course, having reached the view that in the circumstances which prevailed the dismissals were unfair, it was logical for the TDP to look to the suitability of the instigator of those actions, John Whiteside. In deciding on his suitability or otherwise as General Manager, it is clear that the TDP had regard to a variety of relevant factors, such as its finding of a refusal by him to meet the Union’s request to have the Collective Agreement reviewed as to the daily copra harvesting targets, the scale of the dismissals (10 dismissals on 2 June 2004), its finding that rather than investigate what was going wrong his attitude was that dismissed workers should file a complaint to the TDP, and his overall attitude to Ripel’s workforce. The recommendation that his employment be terminated was well within the powers of the TDP, based on the evidence that it heard and the findings it made. As averted to earlier, the TDP had wide powers to take into account the interests of those affected by the dispute, and demonstrated that in its conclusion (justified by its findings) that "the conduct of the General Manager is such that endangers the industrial peace of RIPEL community that warrants his removal."

19 Other grounds of appeal appeared in an initial written submission filed on behalf of Ripel in January 2009. However, Ripel’s counsel chose not to address the Court on those other grounds, and I simply record that none of the matters there raised succeed as valid grounds of appeal.

20 I dismiss the appeal and order the appellant to pay the respondent’s costs in an amount to be agreed or failing agreement to be taxed.

BY THE COURT

Justice IDR Cameron
Puisne Judge