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Maeolea v Solomon Star Company Ltd [2009] SBTDP 15; UDF 05 of 2009 (11 December 2009)

IN THE TRADE DISPUTES PANEL OF SOLOMON ISLANDS

Case No: UDF 05 of 2009

IN THE MATTER of the Unfair Dismissal Act 1982

AND IN THE MATTER of a complaint of Unfair Dismissal

BETWEEN:

JACKSON MAEOLEA
Complainant

AND:

SOLOMON STAR COMPANY LIMITED
Respondent

Hearing: 10th November, 2009, Honiara.
Decision: 11th December, 2009.
Panel: Wickly Faga Deputy Chairman
Edith Fanega Employee Member
Walter H. Rhein Employer Member
Appearances: Selson Fafale (COL), Representative for the Complainant
No appearance (barred), for the Respondent

FINDING

The complainant filed his complaint on the 24/03/09, claiming that he was dismissed because of redundancy but he was not paid his redundancy pay. The respondent was informed of the complaint through the General Manager in a letter by the Panel Secretary dated 1/04/09. In the same letter, the respondent was provided with TDP2 Forms for completion, with clear instructions to return those forms within 21 days for further action. By another letter dated 12/05/09 from the Panel Secretary, the respondent was advised that it had not returned the forms within 21 days, and if it wished to take part in the proceedings, it must apply for an extension of time under rule 13(1) of the Trade Dispute Panel (Unfair Dismissal and Redundancy) Procedure Rules, Cap 75. The respondent was further advised that the matter was listed for prehearing on the 9/06/09. During the prehearing, only the complainant appeared. An application to bar the respondent was refused then. But a similar application made during a further prehearing of the matter on the 21/07/09 was granted.

The Panel heard only the evidence of the complainant during a full hearing of the matter on the 10/11/09. The complainant said in his sworn evidence that one, John Lamani asked him to work as a driver for the respondent in 2003. He commenced work then, distributing papers and attending to other general duties, and he was working from 7 am to 10pm each day, from Monday to Sunday.

In January 2009, the complainant was made redundant. His redundancy was communicated to him in a letter dated 21/01/09, and signed by Catherine Lamani, who was the Managing Director at the relevant time. The said letter was hand delivered to the complainant by another driver Stephen Saelea at his house at Koa Hill in Honiara. The letter was headed "Termination of Employment". The relevant parts of the said letter stated as follows:

"The Board of Directors of Solomon Star Limited has agreed in its meeting to make staff cuts in all departments with immediate effect. This is because of the high expenses in the company's operational costs and very low turnovers in 2008.These financial crises affected our financial standing because of huge borrowings last year. It is very difficult to hold onto staff but to make them redundant."

"Unfortunately, when the review was made, you and others were among those chosen to be made redundant."

In his closing submission, Mr. Fafale stated that his client's termination letter is clear in that the cost of operation was the reason for his client's dismissal from employment. He further submit that the circumstances of dismissal clearly falls under section 4 (1) (b) of the Employment Act (cap72). Therefore his client is entitled to a redundancy payment package which includes holiday pro rata.

The Panel will need to consider whether the complainant was made redundant and that he is entitled to redundancy payment. In doing so, the Panel make reference to section 4(1) (b) of the Employment Act which states that,

4 (1) for the purposes of this Act, when an employee is dismissed his dismissal is to be taken to be because of redundancy if it is wholly or mainly to-

...

(b) the fact that the requirements of that business-

(i) for the employees to carry out a work of a particular kind; or

(ii) for employees to carry out work of a particular kind in the place where he is or was so employed,

have ceased or diminished or are expected to cease or diminish.

The respondent had indicated in its letter (cited above) that it cannot afford to hold onto its staff due to high operational costs and very low turnovers in 2008. The respondent's Board of Directors had resolved to make staff cuts. Consequently the complainant was unfortunately one of those who were identified for redundancy.

After having assessed the complainant's evidence the Panel is convinced that the circumstances giving rise to the complainant's dismissal fall under the provision of section 4(1) (b) of the Employment Act (Cap72). It is therefore one of dismissal because of redundancy.

Having established that the complainant was dismissed because of redundancy, the next question for consideration is whether he is entitled to redundancy. In the Panel's assessment of the facts, the circumstances of the complainant's dismissal do not fall within the exclusion provisions of section 3 of the Employment Act (cap72). The Panel is therefore satisfied that the complainant is qualified to be paid a redundancy payment in a sum calculated in accordance with section 7 of the Employment Act (cap 72), dealing with the amount of redundancy payment.

Mr. Fafale in his closing submission also indicated to the Panel that his client's redundancy package includes his holiday to be calculated on a pro rata basis. The Panel is however of the view that it does not have the mandate to make any determination on holiday apart from the question on redundancy which we already made considerations. The complainant's claim for holiday calculated on a pro rata basis, as an inclusion in the redundancy pay is therefore dismissed.

1. Redundancy Pay

PE x 1/26 x BW = Redundancy Pay
208 x 1/26 x 350-00 = $2800-00

The respondent is to pay to the Jackson Maeolea the amount of $2,800-00 as redundancy pay, and is to be recovered as a debt under section 10 of the Unfair Dismissal Act (cap77).

2. Panel Expenses

The respondent ordered to pay Panel Expenses in the sum of $500-00 within 14 days from the date of receipt of this finding.

3. Appeal

The appeal provisions under the Unfair Dismissal Act 1982, The Trade disputes Act 1981, Trade Disputes Panel (Unfair Dismissal & Redundancy Procedure) Rules 1981, and the Solomon Islands Courts (Civil Procedure) Rules 2008 apply to this finding.

Dated the 11th of December 2009

On behalf of the Panel

Wickly Faga
Deputy Chairman/Trade Disputes Panel