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Jack v Solomon Islands Housing Authority [1990] SBTDP 22; UD 201 of 1988 (30 November 1990)

IN THE TRADE DISPUTES PANEL
SOLOMON ISLANDS

Under the Unfair Dismissal Act 1982

UD/201 /88

Between:

PATTERSON JACK
Applicant

And:

SOLOMON ISLANDS HOUSING AUTHORITY
Respondent

Hearing at Honiara on 26 November 1990 before:

H Macleman Chairman

H Creighton Member

For the applicant: G Suri, Legal Officer, Solomon Islands National Union of Workers.
For the respondent: J C Corrin, Barrister & Solicitor.

FINDINGS

Solomon Islands Housing Authority employed Mr Patterson Jack as a carpenter or builder from 25 May 1987 to 23 August 1988. In its notice of appearance the Authority admitted the dismissal, and founded on the terms of a report by its personnel officer. That report makes it clear that this case is very closely linked with that of Moffat Josep Alegata v. SIHA, UD/259/88, in which the Panel issued its decision on 9 October 1990 in favour of the applicant. That case is now under appeal. Unfortunately the complaints were lodged separately and the Panel was never asked to consolidate them.

At the hearing only the Chairman and one member were available. Unlike the Trade Disputes Panel Rules 1981 (r. 4), the Trade Disputes Panel (Unfair Dismissal and Redundancy) Procedure Rules 1983 do not provide for proceedings in the absence of one member. However, the parties agreed that they would nevertheless be prepared to proceed on that basis, considering that in the circumstances each side would in the future be estopped from basing any objection on that ground. The respondent was also content that the Chairman and member present, having both sat on Alegata's case, should also sit on this case.

In brief, the Authority sought to justify the applicant's dismissal by (1) his failure to complete his allocated task in North Malaita (2) his infringement of the Authority's rules in respect of leaving the workplace without permission, end absence from work, and (3) his late return (by one day) in response to a service message calling him back to Honiara. The applicant's side was that he had arranged with the Authority, through a radio call, for materials to complete the job to be sent to the village of Sulufou, where he heard nothing further until summonsed back to Honiara.

The respondent led evidence from its former Construction Manager, Mr Allen Munimae, who received the critical radio call from the applicant at Sulufou. The witness said that he agreed to send the materials to Sulufou. The evidence for this applicant's case is thus stronger than it was for Alegata and in the circumstances we can see nothing to criticise in his waiting at Sulufou for the materials to arrive. There was an elementary failure on the part of management to tell Jack at his known point of contact that the materials were on site and work could recommence. The Authority has thus established neither a substantial reason for dismissal nor, in view of its failure to make proper enquiries before the decision to dismiss, that it acted reasonably in coming to that decision.

Again as for the other applicant, Jack's conduct was scarcely above criticism. We did not believe his story of sending Alegata back to Honiara to fetch the materials, because Alegata did not tell us anything of the sort. The obvious step would have been to make another radio call and, when money could be found for fares, we do not accept that as beyond his means. Taking account of his lax attitude, we assess compensation on the same basis as for Alegata, i.e. the equivalent of a redundancy payment, one month's basic wage, and interest to date.

Applying the formula under s. 7 of the Employment Act 1982:-

AWARD

The respondent unfairly dismissed the applicant and is to pay him compensation of $328.37 plus interest at 15% per annum from 23 August 1988 until payment (all payable immediately and recoverable as a debt under s. 10 of the Unfair Dismissal Act 1982).

EXPENSES

The Panel fixes a contribution of $200 towards its expenses to be paid by the respondent to the Ministry of Commerce and Primary Industries within 14 days of this date.

APPEAL

(1) There is a right of appeal to the High Court within 14 days on a question of law only: Unfair Dismissal Act 1982, s. 12, Trade Disputes Act 1981, s. 13; Trade Disputes Panel Rules 1981, r. 11; High Court (Civil Procedure) Rules 1964, O. 30 r. 3.

(2) Any party aggrieved by the amount of compensation awarded may within one month of the date of the award to the High Court: Unfair Dismissal Act 1982, s. 7(3).

Issued to parties on 30 November 1990.

On behalf of the-Panel,

(Hugh Macleman)
CHAIRMAN/TRADE DISPUTES PANEL