IN THE TRADE DISPUTES PANEL OF SOLOMON ISLANDS

Case No: UDF 29 of 2009

IN THE MATTER of the Unfair Dismissal Act 1982

AND IN THE MATTER of a Complaint of Unfair Dismissal

BETWEEN:

JULIAN KING
Complainant

AND:

GOLD RIDGE MINING LIMITED
Respondent

Hearing: 7th August 2009

Decision: 20th August 2009

Panel: Wickly Faga Deputy Chairman
 Sika Manupangai Employer Member
 Elijah Gui Employee Member

Appearances: M. Bird, Counsel for the Complainant

 A. Radclyffe, Counsel for the Respondent

RULING

The complainant who is an Australian was employed as Senior Geologist with the respondent company (the respondent), from the 8th March 2008 until his termination on 10th September 2008. He filed his complaint of unfair dismissal with the Panel Secretary on the 8/12/08, pursuant to section 6(1) of the Unfair Dismissal Act 1982[cap77] (the Act). The matter was not registered then, on instructions of the Chairman who sought to find out whether the complainant was a Solomon Islands citizen, in view of section 5(1) of the Act. For one or other reason, the matter was left as it was until in or about the 4th June 2009 when the complainant's solicitor made enquiries with the Panel as to whether her client had filed a complaint with the Panel. Filed copies of TDP 1 were located and the matter was registered. 

The Panel Secretary then sent out enclosures of a completed copy of the TDP Form 1 for its copy, and three copies of TDP 2 to the respondent to be completed and returned to the Panel. In his reply, Solicitor for the respondent informed that before advising his client to complete the TDP2 and agree to the Panel having jurisdiction in this case, the matter be listed for preliminary hearing in order that the Panel can rule on whether it has jurisdiction to hear a complaint of unfair dismissal by a non Solomon Islands citizen. 

It was not disputed by both counsels that the complainant is a non Solomon Islands citizen. He was employed by the respondent as a Senior Geologist by virtue of a contract of employment (the contract) dated 25th January 2008. The contract was terminated by the respondent on the 10th September 2008. Clause 5.1 of the contract states;

"The agreement will remain in force until it is terminated."

The fact that the complainant is a non Solomon Islands citizen gives rise to the present issue for determination. It relates to the excluded cases under section 5(1) of the Unfair Dismissal Act 1982[cap77] (the Act). That section reads, 

"Section 2 does not confer a right on any person employed under a contract of employment for a fixed term (whether or not the term might be renewed) unless he is a citizen of Solomon Islands."

To both counsels' knowledge, and the Panel agrees, the issue had not been dealt with by the Panel or the Courts any time in the past. 

Both counsels made submissions before the Panel. Mr. Radclyffe submit on behalf of the respondent that the clear meaning of s5 (1) of the Act is that people employed for a fixed term contract cannot file complaints of unfair dismissal unless they are citizens of Solomon Islands. In effect, the Panel has no jurisdiction to deal with complaints by non citizens on fixed term contracts. He further submits that it does not however give right to a non citizen who is not on a fixed term contract to claim unfair dismissal. He stated that section 5(1) of the Act deals with excluded cases, and the basis of exclusion is whether or not an employee is on a fixed term contract. A Solomon Islands citizen who is on a fixed term contract is included.

Mr. Radclyffe advanced section 37(1) and (2) of the Labour Act, which deals with work permits, in support of his client's argument. Section 37 (1) and (2) of the LA states;

"(1) No person shall employ an immigrant or non-indigenous worker unless such worker has obtained from the Commissioner a work permit and the employment relates to the conditions of such work permit."

"(2) No immigrant or non-indigenous worker whether employed or self-employed shall work in Solomon Islands without a work permit from the Commissioner which shall specify the work which such immigrant or non-indigenous worker may undertake."

It was submitted that the respondent applied for a 2 year work permit for the complainant. The complainant was granted a work permit for two years. That means irrespective of the provisions of clause 5.1 of the contract of employment, the work permit limits his employment for two years. In the circumstances, section 5(1) of the Act applies, and in effect the Panel has no jurisdiction to hear the complaint. 

Ms Bird however submits that the provision of section 5 of the Act relates to persons employed under a contract for a fixed term. The complainant in the present proceedings was employed by the respondent on an open ended contract of employment. The contract dated 25th January 2008 is not a fixed term contract. On that basis section 5 of the Act does not apply to the complainant. The Panel therefore, does have jurisdiction to entertain the complainant's application for unfair dismissal.

The Panel agrees that section 5(1) of the Act is silent on non Solomon Islands citizens. However, it is a majority view by the Panel that the wording of section 5(1) may be implied to include non Solomon Islands citizens who are not on fixed term employment contracts. This is based on the consideration that there must be a remedy for employees whose rights have been infringed. Whatever the intentions there are for exclusion, non Solomon Islands citizens on fixed term employment contracts are impliedly excluded from making any complaints of unfair dismissal to the Panel. 

It is clear from the provisions of clause 5.1 of the contract that the complainant's employment was not for a fixed term. It must follow then that the complainant is not one of excluded persons.

As regard the argument advanced by counsel for the respondent under section 37(1) and (2) of the Labour Act, the Panel had decided that it cannot be relied on for a simple reason that a written contract had been concluded between the complainant and the respondent which makes provision for the duration of the contract. Section 37(1) and (2) of the Labour Act is only relevant to the extent that any non Solomon Islands citizen who has been employed to work in the country on a 2 years work permit cannot legally work in the country for more than that period. It does not in effect, alter the terms of the contract. For if we were to accept that the complainant's work permit is for only 2 years and is to be considered as a 2 years fixed term contract, and thus falling within the excluded cases under section 5(1) of the Act, then that would be interpreting the terms of the contract against its purpose and intentions. Clause 5.1 of the contract is clear, that the complainant's appointment is not fixed term. It must therefore be interpreted in that regard. 

After having considered the submissions of both parties, the Panel is of the majority view that section 5(1) of the Unfair Dismissal Act may be implied to include non Solomon Islands citizens who are not on fixed term appointment . We are also satisfied that the duration of the contract of employment between the complainant and the respondent in the present proceedings is not fixed. It is therefore not one for exclusion under section 5(1) of the Act. Accordingly, the Panel therefore rules that it does have jurisdiction to hear a complaint of unfair dismissal from the complainant in this matter. 

Orders

The Panel therefore orders that;

1. The respondent shall file with the Panel Secretary its notice of appearance within 14 days from the date of this order.

2. The matter to be listed for further prehearing at a date to be fixed.

Expenses

We make no order as to Panel Expenses.

Appeal

There is a right of appeal to the High Court within 14 days.

Issued to parties on the 20th day of August 2009

On behalf of the Panel

Wickly Faga
Deputy Chairman/ Trade Disputes Panel