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Pakivai v ADRA (Solomon Islands) [2011] SBTDP 3; UDF 130 of 2009 (16 March 2011)

IN THE TRADE DISPUTES PANEL OF SOLOMON ISLANDS

Case No: UDF 130 of 2009

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

BETWEEN:

JERRY PAKIVAI
Complainant

AND:

ADRA (SOLOMON ISLANDS)
Respondent

Hearing: 2 November, 2010, Honiara.
Decision: 16th March, 2011.
Panel: Wickly Faga Deputy Chairman
Eric Maefelo Employee Member
John Adifaka Employer Member
Appearances: Selson Fafale (COL), for the Complainant
No appearance (barred), for the Respondent

FINDING

The Complainant claimed unfair dismissal on the grounds that, 1. He was denied natural justice, 2. He was not served with any previous warnings and, 3. That he was not served with any notice. The Respondent failed to file its notice of appearance after 21 days as required by rule 7 of the Trade Disputes (Unfair Dismissal and Redundancy) Procedure Rules, 1983 (the rules). By a letter by the Panel Secretary dated 16/02/10, the Respondent was advised that if it wished to take part in the proceedings of the matter, it must apply for an extension of time under rule 13(1) of the rules. The Respondent however failed to make a response.

During further prehearing of the matter on the 16/03/10, Panel granted an application by the Complainant's representative for an order that the Respondent be barred from taking further part in the proceedings of this matter pursuant to rule 7(2) of the rules.

At the full hearing of the matter, only the Complainant gave evidence in support of his case. He told the Panel that he was employed by the Respondent to work as a Program Director. He started work in February 2009 until December 2009. He initially worked without signing any formal contract. It was not until in or about July 2009 that the Complainant sought the assistance of the office of the Commissioner of Labour. A letter dated 15th July 2009 and signed by Mr. Selson Fafale was issued to the Respondent advising that a contract of employment should be completed between the two parties [Exibit 1]. In response, a contract of employment (the contract), was prepared, and signed between the Complainant and the Respondent on the 31st July 2009[Exhibit 2]. The expiry date of the contract was 31st September 2009.

At the expiry of the said contract, the Complainant was retained pending a decision by the Respondent's board on the Complainant's continuos employment. By letter dated 14th December 2009, and signed by Mr. Barry Chapman, the Complainant was advised that his employment contract with the Respondent would not be renewed [Exhibit 3].

The immediate issue that arises from the above sets of facts is whether the Complainant was employed in the Employer's undertaking for more than 26 weeks. Under section 4(4)(a) of the Unfair Dismissal Act, cap77, "an employee who is dismissed is not unfairly dismissed if he is dismissed within the period of 26 weeks beginning when his employment in the employer's undertaking began." The Complainant told the Panel that he commenced employment with the Respondent as Prgramme Director in February 2009, but signed a contract of employment in July 2009. The contract was for two months only. Clause 7 of part two of the contract stated that "all previous contracts are rendered null and void by this contract." The Complainant identified his signature that he signed the contract on the 31st July 2009. On the 31st September 2009, his employment with the Respondent under that contract ceased. He was however retained until 14th December 2009, when he was advised in a letter by Mr. Chapman that, his employment contract would not be renewed. Paragraph 6 makes interesting reading, which reads, "This notice is effective from today and you are not required to carry out any further actvities for ADRA Solomon Islands." It appears that the Complainant was re-engaged for a further two and a half months, until the 14th December 2009.

It is now obvious from evidence before the Panel that the Complainant was employed under three different contracts of employment. The first contract can be implied when he first entered into employment with the Respondent in February 2009. That contract was terminated when he signed a new contract with the Respondent on the 31st July 2009. That second contract was completed on the 31st September 2009. He was again re-engaged for a further two and half months until the 14th December 2009. Despite the different contracts of employment, the Complainant was practically in the employers undertaking from January 2009 to 14th December 2009. The Panel is therefore satisfied that the Complainant was employed in the employer's undertaking for more than 26 weeks.

It is however not clear which of the different contracts of employment the Complainant was claiming that he was unfairly dismissed. But obviously, he cannot make any claim under the first contract nor the second contract as those contracts of employments were completed successfully. That leaves us with the latter contract, the one ending on the 14th December 2009. In the letter dated 14th December 2009, Mr. Chapman advised the Complainant of the non-renewal of the second contract of employment, and was further advised that he was not to carry out any further activities for the Respondent from the date of the letter. While the Respondent was refering to non-fulfillment by the Complainant of the terms of the contract which it had now refused to renew, it failed to provide reasons for finishing off the Complainant's employment. The irony here is that, the Complainant's second employment contract with the Respondent was not renewed because of failure to fulfill important terms and conditions. However, immediately after the second contract expired, the Complainant was re-engaged for a further two and half months. It is not known what terms he was being re-engaged, but it is certain that the Complainant worked for a further two and half months until 14th December 2009.

The determining question however is whether the Complainant was dismissed for a substantial reason of a kind such as to justify the dismissal of an employee holding his position at that time, and in all the circumstances had acted reasonably in treating the reason as sufficient for dismissing the Complainant.

The Panel had after considering all evidence is satisfied that the Complainant was dismissed for no reason at all. He was employed since February 2009 without signing a formal contract of employment. When he finally signed a contract of employment, the contract was only for two months. After that contract expired, he was re-engaged for a further two and a half months. He had to wait for two and half months for a decision on the renewal of his previous contract of employment. During that two and half months, he continued to perform duties for the Respondent. He was finally advised by letter on the 14th December 2009 that his previous contract would not be renewed. In that same letter he was advised not to carry out any further activities for the Respondent. It however fails to give reasons why he was no longer required to perform duties for the Respondent.

In all the circumstances, the Panel finds that the Complainant's dismissal was unfair. In awarding compensation, the Panel takes into consideration the fact that the Complainant was employed for less than a year. The conduct of the Respondent is also taken into consideration when making the award. The Panel understands that the Complainant had been paid all monies due to him at the time of his dismissal, including one pay in lieu of notice. The Panel therefore calculates a reasonable compensation as follows.

Award
1. Compensation BW x (52-32=20) = $500-00 X 20= $10,000-00

The respondent unfairly dismissed the complainant and is to pay compensation to Jerry Pakivai in the sum of $10,000.00 being payable immediately and is recoverable as a debt under section 10 of the Unfair Dismissal Act 1982 [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 16th of March 2011

On behalf of the Panel

DEPUTY CHAIRMAN/TDP