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Maefelo v Global Vision Company Ltd [2010] SBTDP 4; UDF 22 of 2009 (4 October 2010)

IN THE TRADE DISPUTES PANEL OF SOLOMON ISLANDS

Case No: UDF 22 of 2009

IN THE MATTER of the Unfair Dismissal Act 1982
AND IN THE MATTER of a complaint of Unfair Dismissal

BETWEEN:

JAMES MAEFELO
Complainant

AND:

GLOBAL VISION COMPANY LIMITED
Respondent

Hearing: 27th April, 2010, Honiara.
Decision: 4th October, 2010.
Panel: Wickly Faga Deputy Chairman
Dudley Hoala Employee Member
Sika Manupangai Employer Member
Appearances: Aaron Mane, for the Complainant
Desmond Davenport, for the Respondent

FINDING

The respondent company used to be called Fielders Limited, and later Goodman Fielders Limited. It is now called Global Vision Company Limited. The complainant was employed by the respondent in its packing unit. He was dismissed for allegedly stealing biscuits. He filed this complaint on the ground that he was wrongfully accused of stealing biscuits. The respondent however stated in its notice of appearance that the complainant was dismissed for stealing biscuits under clause 11B of his employment contract.

By consent of the parties, the Panel made Direction Orders dated 27th April 2010, requesting the parties to file sworn statements, and written submissions. The Panel was to make its finding based on evidence and written submissions as filed by both parties. The respondent filed two unsworn statements on the 4/05/10. One was by Mr. Desmond Davenport, who claimed to be the Manager and another by Mr. Duddley Peter, who claimed to be the Biscuit Supervisor. By copy of a letter dated 17/05/10 from the Deputy Chairman to counsel for the complainant, the respondent was advised to file proper and duly administered sworn statements. It had failed to do so.

According to the statement by Mr. Davenport, the complainant removed from the respondent's premises a box containing 90% of good biscuits and 10% of rubbish sweepings from the floor. The box contains 8 ½ Kgs of biscuits. Removing biscuits from the premises without permision is regarded as stealing as per the terms of his contract of employment. It was for that reason that the complainant was terminated. This information was supported by Mr. Peter in his statement, that the complainant was caught trying to remove biscuits from the respondent's premises without permission.

On the other hand the complainant filed his sworn statement of 19th May 2010, on the 19/05/10. The complainant denied stealing, and stated in his sworn statement that on the day he was terminated, some employees swept the floor with lots of broken and rejected biscuits which he decided to collect for his domesticated animals. He asked Mr. Peter Sare, one of the Supervisors, who gave permission. The complainant then collected the biscuits and put them in a box, then placed it at the respondent's security house. He saw Mr. Duddley watching but did not hesitate to collect the box. As he was taking the box, the said Duddley went over and enquired about the contents. The complainant told him that they were sweepings from the floor, and that he got permission from Mr. Sare to collect the broken biscuits. However, Mr. Davenport and Mr. Duddley would not listen. They told the complainant that his employment was by then terminated.

Exhibited as "JM1" in the sworn statement of the complainant was a copy of a letter dated 22nd March 2010, which was signed by Peter Sare and thirteen other witnesses to the fact that the complainant took rejected and bad biscuits for his animals after obtaining permission from Mr. Sare. They confirmed that collecting of biscuits is a usual practice. There was also no warning prior to dismissal.

There was no written submission being filed by the respondent. A considerable amount of time was also allowed after the lapse of the period allowed for filing submissions, at the Panels discretion. The complainant filed written submission on the 23rd September 2010. It was submitted that the reason for dismissal was not substantial and of a kind justifying dismisal of an employee. It was submitted that the complainant was terminated without proper investigation. The complainant gave sworn evidence that he obtained permission from his Supervisor, and that the biscuits were sweepings from the floor.

In determining whether the complainant's dismissal was fair or not, the Panel must be guided by section 4(1) of the Unfair Dismissal Act [cap77]. The section provides that;

4. (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; and

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

There is sufficient evidence before the Panel to show that the complainant obtained permission from his Supervisor, Mr. Sare, to collect rejected biscuits for his animals. The complainant gave sworn evidence that he sought permission from his supervisor before taking the biscuits out. This was corroborated by Mr.Sare who along with thirteen others confirmed in a letter that the complainant obtained permission before he collected broken and rejected biscuits for his animals. On the other hand, Mr. Davenport stated in his statement that the complainant did not ask permission from management to take anything from the company premises. This was supported by Mr. Peter's statement. The Panel had after careful consideration of available evidence, accepts that of the complainant as more truthful.

The respondent's conduct in not showing seriousness to provide proper and duly sworn statements towards proving that the complainant stole good biscuits without permission is enough to shift the balance in favor of the complainant. The Panel is satisfied on available evidence, that the complainant obtained permission from his supervisor, and that the biscuits he collected to feed his animals were rejected ones. That in the Panel's view is not justifiable reason for the dismissal of the complainant. The respondent had therefore failed to make out its case, and had done so at the benefit of the complainant. The Panel therefore finds that the complainant's termination was unfair.

In awarding compensation, the Panel takes into account that the complainant was not paid one month in lieu of notice.

The Panel makes a fair and reasonable compensation as follows;

AWARD

The respondent unfairly dismissed the complainant and is to pay compensation to JAMES MAEFELO in the sum of $6,090.00, being payable immediately and is recoverable as a debt under section 10 of the Unfair Dismissal Act [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 4th of October 2010

On behalf of the Panel

Wickly Faga
Deputy Chairman/Trade Disputes Panel