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Laua v Kopiu Adventist Community High School [2011] SBTDP 5; UDF 55 of 2010 (14 April 2011)

IN THE TRADE DISPUTES PANEL OF SOLOMON ISLANDS

Case No: UDF 55 of 2010

IN THE MATTER of the Unfair Dismissal Act 1982

AND IN THE MATTER of a complaint of Unfair Dismissal

BETWEEN:

BERRICK COLLIN LAUA
Complainant

AND:

KOPIU ADVENTIST COMMUNITY HIGH SCHOOL
Respondent

Hearing: 22nd March, 2011, Honiara.
Decision: 14th April, 2011.
Panel: Wickly Faga Deputy Chairman
Eric Maefelo Employee Member
John Adifaka Employer Member
Appearances: Donald Marahare, counsel for the Complainant
No appearance (barred), for the Respondent

FINDING

This is a complaint of unfair dismissal by the Complainant who claimed that he was dismissed without any substantial reason. He lodged his complaint with the Panel secretary on the 12/07/09. The Panel Secretary, had after registering the complaint on the 14/07/10, sent out three copies of notice of appearance to be completed by the Respodnent and returned within 21 days of receipt of those forms.

The Respondent failed to file its TDP2 forms within 21 days as required by r7 (1) of the Trade Disputes Panel (Unfair Dismissal and Redundancy) Procedure Rules, cap 75 (the rules). A letter of reminder dated 13/09/10, was sent to the respondent. However, there was still no response. The Respondent also failed to apply for an extension of time under r 13(1) of the rules. During a further prehearing of the matter on the 15/02/11, the Panel granted an application to bar the respondent from taking any part in the further proceedings of this matter under r7 (2) of the rules.

During a trial of this matter, only the Complainant gave evidence in support of his case. The Panel heard that the Respodnent School is situated at Marau Sound area, Guadalcanal Province. The Complainant, who now works as a private businessman, was a former employee of the Respondent school, as boat driver and workshop handyman. He commenced employment on the 1st of May 2007 until his dismissal on the 29/04/10.

The Complainant also told the Panel that prior to his dismissal, his salary was ceased in or about June 2009. He however continued to perform his duties because he considered the school as belonging to the community. In January 2010, he went and discussed the non-payment of his salary with the principal; Mr. Amson Atu. He was assured by Mr. Atu that he would look into the matter. However, nothing was done to re-instate his salary. The Complainant later learned from some members of the school board on the 29/04/10 that his employment was being terminated. He was not formally informed about his termination and no reasons were given for his termination. He was receiving $400-00 per month up to when his pay was ceased in June 2009.

The Complainant told the Panel that his dismissal was believed to have been part of effort by the new principal and his administration to remove all staff recruited under the former principal, Mr. Luke Taro. This is dismissed in the absence of any corroboration.

Section 4(1)of the Unafair Dismissal Act, Cap 77 states that,

(a) an employee who is dismissaed is not unfairly dismissed if he is dismissed for a substantial reason of a kind such as to justify the dismissal of an employee holding his position,

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

The determining question therefore is whether the Complainant was dismissed for a substantial reason. The Panel heard that the Complainant was employed by the Respodnent as boat driver and handyman from May 2007 until his dismissal on the 29/04/10. There was however no evidence to suggest the reason for the Compalainant's dismissal. The Panel is without the benefit of any appearance by the Respodnent to register its reason for dismissing the Complainant. The Respodnent was however given the opportunity to make an appearance but it failed to do so. It had unfortunately done so at its own cost.

After going through all available evidence and being mindful of the uncontested evidence, the Panel is satisfied that the Complainant was dismissed for no substantial reason. This is enough to render his dismissal unfair.The Panel therefore finds that the Complainant's dismissal without any reason is unfair, and he is entitled to be paid compensation.

In awarding compensation the Panel notes that he was not paid any notice in accordance with section 3 of the Labour Act. The Panel also takes into consideration the conduct of the Respondent.

In all the circumstances, the Panel makes a fair and reasonable compensation as follows.

AWARD

The respondent unfairly dismissed the complainant and is ordered to pay compensation to Berrick Collin Laua in the sum of $4,400.00 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 14th of April 2011

On behalf of the Panel

DEPUTY CHAIRMAN/TDP