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Tamana v Solomon Airlines Ltd [2012] SBHC 80; HCSI-CC 97 of 2010 (8 August 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 97 of 2010

BETWEEN

DAGA TAMANA
Claimant

And

SOLOMON AIRLINES Ltd
Defendant

Mr Fa'aitoa for the Claimant
Mr Hapa for the Defendant

Date of Hearing: 17th July 2012
Date of Judgment: 8 August 2012 (Delivered by Registrar)

Judgment

1. The Claimant was employed by the Defendant as a supervisor (traffic) in their Ground Services (Traffic) Department. He had held that position since May 2006 although he had worked for the airline for longer. The Defendant had an "Approved Policy" which had been effective since 1999. It is presently under review in conjunction with the Solomon Islands National Union of Workers. It dealt with, amongst other things, early retirement. The approved policy was that employees with more than 10 years of continuous service could "opt to retire early". On 5th may 2009 the Claimant wrote to the manager of human resources. He told the Defendant's Human Resources Department he wanted to take early retirement. The Defendant replied on 6th May saying, "Your application for early retirement will be considered and the outcome advised to you accordingly". On 13th May the Defendant again wrote to the Claimant and told him, "I advise that after much consideration, your request to leave Solomon Airlines under the early retirement arrangements has not been approved".

2. There was further correspondence and then on 19th May the Defendant wrote a "show cause letter". The Defendant alleged the Claimant was a shareholder of a new ground handling company called Solomon Islands terminal Services Ltd. It considered the new company would compete directly with the airline's operations. The Claimant's shareholding gave rise to "serious concerns about your loyalty and commitment to Solomon Airlines Limited". The letter indicated the situation was being taken very seriously and that it was not one which could be accepted or condoned. The letter went on to give the Claimant 24 hours to show cause why his employment should not be terminated. The Defendant did not respond and on 21st May the Defendant wrote again saying his employment had been terminated.

3. The Claimant did not and does not challenge his dismissal as being unfair or unlawful. He does seek declarations from this court to the effect that he was entitled to exercise his unfettered discretion to seek early retirement. He then seeks consequential declarations about the entitlements he would have been allowed had he retired early. The issues are said to be whether the Claimant was entitled to seek and be given early retirement. A second issue is whether the Claimant was entitled to seek and been given early retirement when his employment had been lawfully terminated.

4. In my view the claim is misconceived. The Claimant seeks to argue that he had an unfettered right to ask for and be granted early retirement. Whilst there is no doubt he could opt for early retirement, meaning he could ask the Defendant to accept his early retirement, it was an entitlement which was subject to the airline agreeing or approving the arrangement. That seems to have been accepted by the Claimant in his correspondence with the Defendant at the time. In his original letter dated 5th May 2009 he ends by writing, "Your favourable consideration will be highly appreciated". Implicit in that phrase is an acceptance that his early retirement was not a forgone conclusion. When the Defendant replied on 6th May 2009 it told him, "Your application for early retirement will be considered....". In his subsequent letter dated 18th May the Defendant acknowledges that early retirement is a benefit which the employer can grant. The letter is headed, "Early retirement application". In it the Claimant refers to other employees who have been, "granted early retirement". He also says his application is made in good faith.

5. Clearly the Defendant's policy was to allow those with more than 10 years employment to apply for early retirement. That is set out in the "Approved Policy" document [1]. There are excerpts from Solomon Airlines Limited Staff Policies and Procedures manual exhibited to Ms Utukana's sworn statement filed on 2nd May 2012 but it is not clear whether the policy document (MU14) is part of that manual. In any event the policy adopted by the Defendant was the employee could opt for early retirement. The option could not be exercised unless there had been "at least 10 years" of continuous employment. From the tenor of the description under the heading "Purpose" and the section dealing with the "Method of Operation", it appears the employer was still left with the discretion as to whether or not to permit the exercise of the option. In exercising its discretion the employer would take into consideration those matters set out in the policy document. There is no evidence, and it is for the Claimant to prove his case on the balance of probabilities, this policy was a binding arrangement which not only created the entitlement to opt for early retirement but also guaranteed the option would result in the employee actually taking early retirement.

6. The Claimant has produced no evidence to show that he not only had an entitlement to retire early but that such entitlement was his for the asking and was one which the airline could not refuse. The terms and conditions of his employment were set out in the letter of 22nd May 2006 and it makes no mention of such an absolute right to retire early. It makes no mention of the policy on early retirement. It is a moot point as to whether or not the policy document was part of the Solomon Airlines Limited Staff Policies and Procedures manual which itself may have been incorporated into the contract of employment (the letter of appointment mentioned earlier refers to the manual), the plain fact is the policy only provides for the Claimant to opt for early retirement.

7. The second issue is easier to deal with than the first and can be answered shortly but it does highlight the possibility of an inequitable situation if the Claimant is right. I asked Mr Fa'aitoa about a possible situation where an employee is about to be fired for theft or some other very serious indiscretion. He is summoned to his supervisors office but before he is told, "You're fired" he hands in a letter opting for early retirement. If the Claimant is correct and the Defendant has no say in the matter the employee would escape all the consequences of disciplinary action and still be paid 1 ½ year's salary. No reasonable reading of the policy document would permit that situation to arise. That is not a situation to be found in this case and the second issue can be answered shortly simply because I have found the Defendant has discretion whether or not to agree to early retirement. The short answer is yes, provided the Defendant agreed.

8. The claim has no reasonable prospect of succeeding and must be dismissed. The usual rule is that costs follow the event. No reason has been put forward for any departure from the usual rule. The Claimant shall pay the Defendant's costs, such costs to be assessed by the Registrar of the High Court on a standard basis if not agreed.

Chetwynd J

^[1] See Annexure MU14 to the sworn statement of Monica Utukana filed 2^nd May 2012