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Kunua v Club Paradise [2010] SBTDP 6; UDF 52 of 2008 (12 November 2010)

IN THE TRADE DISPUTES PANEL OF SOLOMON ISLANDS

Case No: UDF 52 of 2008

IN THE MATTER of the Unfair Dismissal Act 1982

AND IN THE MATTER of a complaint of Unfair Dismissal

BETWEEN:

SAMSON KUNUA
Complainant

AND:

CLUB PARADISE
Respondent

Hearing: 4th May, 2010, Honiara.
Decision: 12th November, 2010.
Panel: Wickly Faga Deputy Chairman
Walter. H. Rhein Employee Member
Duddley Hoala Employer Member
Appearances: Selson Fafale of Commissioner of Labour Office, representing the Complainant.
No appearance by the Respondent (Barred).

FINDING

The Complainant was employed by the Respondent as Security since 1999 until the 7th of September 2008 when he was told to rest from duties. He unsuccessfully made attempts to find out the reasons why he was told to rest from duties, and enventually considered himself as being dismissed at the time he was told to rest from duties.

The Complainant stated in his TDP1 Form that the grounds of his application for unfair dismissal are;

• No formal letter of termination. I was only told to rest a while (unpaid leave).
  
• There was no substantive reason for termination.
  
• No previous warning.
  

The Respondent had not filed its notice of appearance. It also failed to make appearances on three different occassions when this matter was set for mention. The Panel then accepted an application to bar the Respondent from taking any part in the proceedings of this matter. The Order was made pursuant to rule 7(2) of The Trade Disputes (Unfair Dismissal and Redundancy) Procedure Rules 1982.

During a full hearing of this matter, only the Complainant gave evidence in support of his case. In his sworn evidence, the Complainant told the Panel that he resides at Gilbert Camp in Honiara. He was employed by the Respondent as Security, and was based at the Club Paradise (the Club) at Point Cruz. His employment with the Respondent started in 1999 and ended on the 7th September 2008. His main duties as Security were to enusre that all customers are safe and that any trouble inside the club is prevented.

On the 7th September 2008, the owner and Managing Director of the Respondent club, one, Mr. Robert Chow, advised the Complainant to rest from duties for a while. No reason was given as why he had to take that rest from work but, the Complainant did as he was told and took time off from work. After three weeks rest, the Complainant went back and talked to the said Mr. Chow. He inquired about the status of his employment. In his response, Mr. Chow told him to just rest from duties. The Complainant then stayed on as advised. On the first week of Novemner 2008, he went back again to Mr. Chow and inquired about the status of his employment. He however got the same response. During that time he realised that a new Security Officer was recruited to replace him, so he considered himself as being terminated at the time he was told to rest from duties. The Complainant also told the Panel that others who used to work for the Respondent were dismissed from employment in a similar fashion. He also told the Panel that during his ten years of working for the Respondent he had not received any warning.

The Complainant also told the Panel that he was receiving $480.00 at the time of his dismissal. At the time of his dismissal, he was not paid any money.

In his closing submissions, the Complainant's representative stated that his client had served the Respondent for ten years, and had been with the Club during the ethnic crisis in this country. Upon his termination, no reason was given for so acting. He also submitted that there is nothing as rest from duties other than paid or unpaid leave. The Complainant did not apply for leave, whether paid or unpaid. He further submitted that there was no reason for dismissing his client. On that basis his client's termination was unfair.

The Panel is without the benefit of any notice of appearance by the Respondent to say whether it dismissed the Complainant or not. According to evidence before the Panel, the Complainant was told to rest from duties. He was not given any reason why he had to take that rest. There was no definte time he was to take that rest. In determining whether the Complainant was dismissed or not, the Panel refers to an ealier case that came before this Panel; that of Doreen Sualu-v-Kitano Mendana Hotel, UDF27/08. In that case, the Complainant was told to rest from duties. No reason was given why the Respondent in that case had to take that action, and no definite time was given for the Complainant to take that rest. The Panel had after conisdering the facts held that the Complainant was dismissed at the time he was told to rest from duties. A similar consideration was made by the Panel in the case of Willie Fa'asu-v-Solomon Islands Protective Services, UDF39/08. In view of that, the Panel will not differ this time. The Panel is therefore satisfied that the Complainant was dismissed from employment when he was told to rest from duties on the 7th September 2008.

In determining whether the Complainant's termination was fair or unfair, we must be guided by section 4 (1) (a) and (b) of the Unfair Dismissal Act [cap77] (the Act). That section of the Act states that;

(1) An employee who is dismissed is not unfairly dismissed if-

(b) he is dismissed for a substantial reason of a kind such as to justify the dismissal of an employee holding his position

(b) in all the circumstances, the employer acted reasonably in treating that reason as sufficient for dismissing the employee.

According to available evidence before the Panel, the Complainant was told to rest from duties. No reason was given as to why he had to take that rest. There being no reason for dismissing the complainant, the Panel finds on the balance of probabilities that the Complainant's termination was unfair.

In awarding compensation, the Panel takes into account that the Complainant had worked for the Respondent for ten years. In all the circumstances, the Panel makes a fair a reasonable compensation as follows;

Basic Award

The Respondent unfairly dismissed the complainant and is to pay compensation to Samson Kunua in the sum of $10,960.00 being payable immediately and is recoverable as a debt under section 10 of the Unfair Dismissal Act 1982 [cap 77].

COSTS

The respondent is ordered to pay $500-00 towards Panel expenses within 14 days from receipt of this finding.

APPEAL

There is a right of appeal to the High Court within 14 days on points of law only, and any party aggrieved by the amount of compensation awarded may within one month of the date of the award appeal to the High Court as provided for under the Unfair Dismissal Act 1982, S. 7 (3).

Dated the 12th of November 2010

On behalf of the Panel

Wickly Faga
DEPUTY CHAIRMAN/TDP