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Bulacan Integrated Wood Industries (SI) Co. Ltd v Tapa [2025] SBHC 44; HCSI-CC 565 of 2022 (27 March 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 565 of 2022

BETWEEN

BULACAN INTEGRATED WOOD INDUSTRIES (SI) COMPANY LIMITED
Appellant

AND:

JASPA TAPA
Respondent

Dat e of Hearing: 18 February 2025
Date of Ruling: 27 March 2025

Mr J Ralph for the Appellant
No Appearance for the Respondent

RULING ON APPEAL

1. This is an appeal lodged under section 13 of the Trade Disputes Act (Cap. 75) against the award of the Trade Dispute Panel made in favour of the Respondent on 9^th November 2022.
2. The appeal was filed on 13^th December 2022. I note that the Trade Dispute Panel’s ruling states that an appeal against the award made on the 9^th November 2022 should be filed within 30 days. However, upon perusal of section 13 of the Trade Disputes Act and section 11(1) of the Unfair Dismissal Act (Cap. 77), I found no specific 30-day appeal period prescribed in the legislation. It appears that the duration for filing an appeal should be determined by the Rules Committee, as stipulated under section 90 of the Constitution, and outlined in section 3(3)(i) of the Trade Disputes Act. In the absence of explicit rules governing the specific timeline for appealing to the High Court against the Trade Dispute Panel’s decision, I hereby allow the hearing of this appeal.

Grounds of Appeal

3. The Appellant raises the following grounds of appeal:
   1. The Panel erred in law by barring the Appellant from the hearing. The right to a fair hearing is a constitutional right afforded to every individual and legal entity. The mere technicality of barring a party does not extinguish this right.
   2. The Panel erred in law, or was misguided, when it framed the two questions for determination in paragraphs 14 and 15 of the Trade Dispute Panel’s decision (UDF 77/17), focusing solely on section 4(a) and (b) of the Unfair Dismissal Act, without considering section 4(3) of the Act.
   3. The Panel erred in law and in fact when it concluded that the Respondent was not issued a warning letter prior to his termination. Had the Appellant not been barred from the proceedings, it would have produced evidence to the contrary.
   4. The Panel erred in law by inferring from the Respondent’s evidence about section 157 of the Shipping Act, without first conducting an inquiry to determine whether the Respondent violated or was guilty of section 157 of the Shipping Act.
   5. The Panel erred in law by failing to take into account relevant considerations, and instead considering irrelevant factors. Specifically, the Appellant argues that:
      1. The Panel erred by excluding evidence related to the Respondent's misconduct; and
      2. The Panel’s award of damages was unreasonable and excessive.

Reliefs sought

4. The Appellant seeks the following reliefs: that the appeal be allowed, the award be set aside, and the case to be determined by this Court, along with the award for costs.

Relevant Facts

5. The Appellant is the former employer of the Respondent, who was employed as the Captain of a vessel from 4^th September 2016 until his termination on 4^th May 2017. The Appellant asserts that the termination was due to misconduct, insubordination, drunkenness, and negligence of duty.
6. The Respondent filed a claim with the Trade Dispute Panel for unfair dismissal. The case was first mentioned on 6^th March 2018, with subsequent case management mentions. On 20^th November 2020, the Appellant filed a notice of appearance in the form of TDP F2, which was over three years after the complaint was initially filed and the Appellant was required to respond, as per Rules 7(1) and 13(1) of the Trade Dispute Panel (Unfair Dismissal and Redundancy) Procedure Rules (Cap. 75).
7. Due to the Appellant’s failure to appear, an order was issued on 17^th March 2021 barring the Appellant from participating in the proceedings. However, this order was revoked after the Appellant applied on the ground that the order had not been properly served.
8. After the revocation, the Appellant continued to be absent without explanation. On 30^th June 2021, the Panel issued another order barring the Appellant from the proceedings due to continued nonappearance.
9. Over the course of 25 sittings, the Appellant attended only one, which was on 11^th November 2020 (the sixth sitting). As a result of the Appellant’s protracted absence and the issuance of the exclusionary order on the 30^th June 2021, the Trade Dispute Panel proceeded with the matter ex parte, ruling in favour of the Respondent.
10. The Panel found that on 30^th April 2017, the Respondent was instructed to load heavy-duty machines onto a tugboat at Lunga, Honiara in order to sail to the Appellant’s camp site at Viviruni in Choiseul Province. On 2^nd May 2017, after loading the machines, it was noted that there was no provision of food and water for the crews. The Respondent informed the crews of the situation, and they agreed not to sail unless provided with rations. The Respondent contacted the Shipping Manager of the Appellant, but was instructed to sail to Choiseul, as directed by the company’s boss. The Respondent refused to comply with the order, citing the lack of provisions of food and water. As a result, the Respondent did not sail the tugboat. On 4^th May 2017, the Appellant terminated the Respondent without notice.
11. Since the filing of this appeal, the Respondent has not appeared, despite being served with the notice of appeal and the notice of hearing through substituted service by radio broadcast on SIBC from 13^th to 15^th September 2024 and in the Solomon Star newspaper on 16^th and 17^th September 2024. Given the significant delay and the lack of response from the Respondent, this matter proceeded to be heard ex parte.

Issues for Determination

12. The Appellant has proposed five issues for determination, as outlined in paragraph 4 of the Appellant’s written submission:
    1. Whether the Notice of Appeal was properly served on the Respondent.
    2. Whether the Panel erred in law by barring the Appellant from the hearing.
    3. Whether the Panel erred in law by disregarding section 4(3) of the Unfair Dismissal Act.
    4. Whether the Panel erred in law by concluding that the Respondent was not issued a warning letter.
    5. Whether the Panel erred in law by considering irrelevant matters and failing to consider relevant matters.
13. These issues are directly derived from the Appellant's appeal grounds. In determining the merits of the appeal, I also consider the written submission and the case authorities relied on by the Appellant.

Appeal Ground 1

14. The primary issue for this hearing is whether the Appellant's exclusion from the proceedings by the Trade Dispute Panel resulted in a violation of the common law principle of natural justice, which requires that both parties be afforded the opportunity to be heard.
15. The Trade Dispute Panel’s second order to bar the Appellant from the proceedings was issued on 30^th June 2021, relying on Rule 7(1) and (2) of the Trade Disputes Panel (Unfair Dismissal and Redundancy) Procedure Rules. Rule 7(1) requires a respondent to enter an appearance within 21 days of receiving a copy of the complaint. Rule 7(2) states that a respondent who has not entered an appearance may not participate in the proceedings.
16. However, both subsections must be read together. If the respondent has filed an appearance (as the Appellant did by submitting the TDP F2), then the invocation of Rule 7(2) should not apply. In such a case, the Trade Dispute Panel should continue the proceedings and issue notices to attend to the respondent. If the respondent fails to attend despite the receipt of the notices, the Panel may then decide on whether to proceed with the hearing in the absence of the respondent.
17. I have perused the evidence before me and find that, despite the Appellant’s appearance submitted in the TDP F2 on the 20^th November 2020, the Panel continued to issue an exclusionary order in June 2021, barring the Appellant from participating in the proceedings. This was an error, as the Appellant had already entered an appearance and was entitled to participate in the proceedings. The Panel’s decision to bar the Appellant on a proper construction of Rule 7(1) and (2) of the Trade Disputes Panel (Unfair Dismissal and Redundancy) Procedure Rules was therefore erroneous.
18. This view is consistent with the decision of this Court in Heritage Park Hotel v Attorney General [2024] SBHC 163, where the Court found that the Trade Dispute Panel had erred in excluding a party after an appearance had been entered, as stated:
    • “Rule 7(1) states “A respondent shall within 21 days of receiving the copy of the complaint enter an appearance to the proceeding by presenting to the Secretary a complete notice of appearance in triplicate in Form B in the schedule.”
    • Rule 7.2 states “A respondent who has not entered an appearance shall not take any part in the proceedings.”
    • I had checked the file and found that the Appellant entered an appearance as required by rule 7.2. In view of this I am satisfied that the Trade Dispute Panel erred in excluding the Appellant from the proceedings and on that basis, the second ground of appeal is allowed.”
19. Based on the above, the first ground of appeal is allowed. It is crucial that both parties are given the opportunity to present their case in a fair and just manner. As the Court emphasized in Board of Education v Rice [1911] UKLawRpAC 18; [1911] AC 179, a case referred to in Carey v South Pacific Oil [2015] SBCA 17, where Lord Loreburn LC, at page 182, echoed that a tribunal or court needs to uphold natural justice in the adjudication of a matter, and that a decision is made only after a fair hearing of both sides, as expressed in these terms:
    • “They must act in good faith and fairly listen to both sides, for that is the duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial...They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.”
20. In light of this conclusion, it is unnecessary to address the remaining grounds of appeal, as their outcomes will not alter the decision of this case.
21. I am conscious of the relief sought by the Appellant to determine the merits of the matter in the place of the Trade Dispute Panel. However, I am of the view that I would be in a better position to do so if this hearing is not heard ex parte. Hence, I prefer that this matter should be remitted to the Trade Dispute Panel for reconsideration, allowing both parties to present their respective evidence and arguments before a fair determination is made.

Orders of the Court

1. The appeal is allowed.
2. The matter is remitted to the Trade Dispute Panel for reconsideration of the dispute according to law.
3. Costs of this hearing to be paid by the Respondent on a standard basis.

THE COURT
Hon. Justice Augustine S. Aulanga
PUISNE JUDGE