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Ha'anga v Pacific Venture (SI) Ltd [2018] SBTDP 9; UDF 29 of 2014 (3 September 2018)

IN THE TRADE DISPUTES PANEL
SOLOMON ISLANDS

CASE NO. UDF 29/2014

BETWEEN:

George West Ha’anga
(COMPLAINANT)

AND:

Pacific Venture (SI) Ltd
(RESPONDENT)

Date of hearing: 27/09/2017

Date of award: 03/09/2018

FINDING

1. By complaint lodged to the Panel (TDP Form 1) on 26/03/2014, the Complainant claimed he was unfairly dismissed by the Respondent on 03/01/2010. The ground for his complaint were stated as follows:
   
   1. Continual absenteeism without permission for more than 3 days;
   2. No natural justice; and
   3. Unfair termination.
      

Relevant facts

2. The Complainant was employed by the Respondent company (Pacific Venture) as Chief Engineer on its vessel MT Canggih 7 and signed an employment contract (Exhibit 1) on the 26/1/2010 the Panel heard. He has work for the Respondent for 4 years.
   
3. These were the chronological order of dates where this matte was called to appear before the Panel;
   

13/5/2014 - Notice of appearance,

3/6/2014 - Preliminary hearing the Complainant and the Respondent did not appear,

22/7/2014 – the Respondent did not appear,

19/4/2016 – the Respondent did not appear, the Complainant applied for the Respondent to be barred from active participating in any full hearing of this matter pursuant to Rule 7(2) of the Trade Disputes Panel (Unfair Dismissal and Redundancy) Procedure Rules and the application was granted by the Panel.

26/4/2016 – the Panel Order of the bar informing the Respondent.

4. The Panel eventually heard the matter on the 27/9/2017 on which the Complainant gave oral evidence. The evidence of the Complainant the Panel heard that he was terminated for being absent in a termination letter dated 3/1/2014 (Exhibit 2). The termination letter was handed to Complainant on the 10/1/2014 at the Respondents office at Ranadi.
   
5. The Complainant in his evidence the Panel heard he would have been absent from work for two days that was 2^nd and the 3^rd of January 2014 since 1^st January 2014 was New Year’s day and a public holiday. The Panel heard that since it was the Christmas festive season the Respondent office was closed and he requested the vessel’s captain Mr. David Billy permission for him to see the doctor on the following day. The permission was granted, Exhibit 3 is a letter dated 16/1/2014 written by Dr. Scott Siota a Surgeon at the National Referral Hospital, about the Complainant’s medical condition for which he was to see the doctor.
   
6. The Panel heard that the Complainant has not received any verbal or written warning before from the Respondent. He disputed that he was absent from work for 3 consecutive days.

The Panel was informed during the hearing that the Complainant was never informed of the allegation, nor was he given a chance to explain his side of the allegation only to receive the termination letter.

LAW

7. In unfair dismissal cases, the guiding principles in determining whether a dismissal is fair or not is found in Section 4 of the Unfair Dismissal Act, [Cap 77], which states:
   

"(1) 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;

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

8. The Panel in determining whether the termination was fair or not these two questions must be asked;
   
   1. Was the reason for dismissing the Complainant substantial and of a kind justifying a dismissal of an employee holding the Complainant's position?
      
   2. Did the employer act reasonably in treating that reason as sufficient in terminating the complainant
      
9. The Panel answered both questions in the negative and that the reason for the termination was not substantial justifying a termination of an employee holding the Complainants position. The Respondent did not act reasonably in treating the reasons as sufficient in terminating the Complainant and therefore the Panel found the termination to be unfair in that circumstance.
   

AWARD

10. In awarding compensation, the Panel notes that the Complainant had worked for the Respondent for a period of more than 4 years.
    

The Panel therefore awards;

1. Six months' salary as compensation to the Complainant for loss of employment,
2. Payment in lieu of notice,
3. Holiday based on pro-rata,
4. Repatriation costs.
   

These awards are calculated as follows;

(a) Six months’ salary;

Monthly salary (Exhibit 1) - $2,800.00

$2,800.00 x 6 months - $16,800.00

(b) Payment in lieu of notice;

One month notice pay - $2,800.00

(c) Holiday based on pro-rata;

30 days x daily rate

30 x $93.33 - $2,800.00

(d) Repatriation Cost; - $1,000.00

Total pecuniary awarded - $23,400.00

11. The Panel therefore considers the sum of $23,400.00 as fair and reasonable in all the circumstances, taking account the conduct of the employer and the Complainant both before and after the date of termination.
    

ORDERS

12. The Panel makes the following Orders;
    
    1. The Respondent is to pay the sum of $23,400.00 as compensation to the Complainant for unfair dismissal within 14 days of this Order.
       
    2. The Respondent to pay Panel expenses in the sum of $1,000.00 to the Ministry of Commerce, Industry Labour & Immigration pursuant to Section 11(2) of the Unfair Dismissal Act [Cap 77].
       

APPEAL

13. Pursuant to Section 7 (3) of the Unfair Dismissal Act [Cap 77] a party aggrieved by the amount of compensation awarded by the Trade Dispute Panel may within one month of the date of the award appeal to a Court.
    

On behalf of the Panel,

Willy Vaiyu.
Deputy Chairman
Trade Dispute Panel