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Teika v Rennel and Bellona Provincial Government [2012] SBTDP 1; UDF 77.2009 (16 January 2012)

IN THE TRADE DISPUTES PANEL
SOLOMON ISLANDS.

IN THE MATTER of the Unfair Dismissal Act 1982

AND IN THE MATTER of complaint of Unfair Dismissal

BETWEEN

THOMPSON TEIKA
Complainant

AND

RENNEL AND BELLONA PROVINCIAL GOVERNMENT
Respondent

FINDING

This is a complaint of unfair dismissal. The Complainant was employed by the Rennell and Bellona Provincial Assembly (the Assembly) as Clerk. His employment began on the 29^th November 2006 and ended on the 24^th July 2009. The Complainant stated in his TDP 1 Form that this application for unfair dismissal is based on the following grounds that;

The onus of proving fair dismissal therefore rests with the Respondent. In its response, the Respondent, being represented by the Attorney General's Office, admitted that it terminated the Complainant. The reason for dismissal was, "gross misconduct and serious negligence of duties and responsibilities." The Respondent further stated its ground of defence as follows that;

• "Thompson Teika is a political appointee. Re was appointed by the Rennel and Bellona Provincial Assembly."
  
• "On 14^th July 2009, Thompson left his duties and responsibilities without permission on a private trip to Lake Tengano, East Rennell, hunting for coconut crabs (kasusu)."
  
• "On 20^th July 2009, Thompson came out from Telekom compound very drunk and aggressive, shouting and swearing in public and threatened to damage the Provincial generator."
  
• "Thompson entered the provincial workshop shed, entered the generator room. He was stopped and dragged out by Rex Pongi and other bystanders. Thompson was eventually overpowered and dragged out of the workshop area to the main road where he was left crying, and continued swearing and shouting in public."
  

Two witnesses were called to give evidence in support of the Respondent's case.

The first Respondent witness was Timothy Johnston Peseika. He gave evidence under oath that he was the Premier of Rennell and Bellona Province from 2008 to 2010. He told the Panel that the Complainant was appointed by the assembly. His letter of appointment was exhibited as "TJP1" in the sworn statement of Peseika which was filed on the 5^th April 2011. Mr. Peseika identified his sworn statement, and was admitted as evidence. He stated in clause 5 of his sworn statement that on the 14th July 2009, the Complainant left his duties and responsibilities and without any permission, went on a private trip to Lake Tengano to look for coconut crabs (kasusu). This evidence was not disputed by the Complainant.

Mr. Peseika also stated in his sworn statement and during oral examination in chief, that on the 20^th July 2009, the Complainant was drunk and got aggressive during a function to launch the Our Telekom office at Tingoa, Rennel Island. This evidence was corroborated by Mr. Robert Pongi. Mr. Pongi was the Provincial Secretary for Rennel and Bellona Province then. He recounted that on the 20th July 2009, he attended a function to launch the Our Telekom office at Tingoa, Rennell Island. Mr. Pongi and others who attended the occasion were served food and drinks, including beer. Mr. Pongi and the Complainant had a few beers. After drinking beer, Mr. Pongi and the Complainant walked home. On their way passed the provincial workshop, the Complainant became aggressive and was shouting and swearing at the Senior Works Officer, Mr. Joses Gamutu, telling him that he would damage the provincial generator.

The Complainant admitted that he and Mr. Pongi had a few beers after the launch. After they had ran out of beers, they decided to walk to Mr. Pongi's place. It was on their way passed the workshop area that an argument broke out between the Complainant and the Workshop Manager. According to the Complainant, this was over a sarcastic reply made by the Workshop Manager to the Complainant when he asked for the keys to the workshop. The workshop Manager said something similar to, "I have the keys to the workshop, but I can not open it because there is no money." In response, the Complainant shouted back to the Workshop Manager, and said something similar to, "I will destroy the generator so you will not have a job." The Complainant denied that he swore at the Provincial Secretary, but another person of the same surname. However, when put to him in cross-examination that he was too drunk to remember anything, he agreed that he would not have remembered anything, or swearing at anyone.

The Complainant also admitted that he left his duties and responsibilities on a private trip to East Rennell, without permission. His main reason for not seeking permission was that the Provincial Secretary was in Honiara at that time, but he had to go and find food for his family because his pay was not forthcoming then. He however accepted that the Deputy Provincial Secretary was at the station at that particular time, but he could not speak to him due to bad working relationship, and further he was on his way out of Office. The Complainant denied that he went looking for kasusu.

The Respondent's lawyer Ms.Folau, stated in her closing submission that the Complainant was dismissed for a substantial reason such as to justify the dismissal of the Complainant who was holding the post of Clerk of the House. Evidence showed that the Complainant left his duties without any authority and went home to collect food, even though the Deputy Provincial Secretary was still in office. There was also enough evidence that the Complainant attempted to damage provincial property, the generator, and that he was swearing, shouting and being drunk in public. It was therefore submitted that in all the circumstances, the Respondent did not act unfairly in dismissing the Complainant, and that the claim be dismissed.

There was no written submission on behalf of the Complainant, even though a reminder letter dated 18/8/11 was issued to his Solicitor, informing of the Panel's intention to proceed with the determination after 14 days from the date of the letter.

After having had time to consider all available evidence, both written and oral, and having read the submission by the Respondent, the Panel accepts that the Complainant left his job without authority. There was no supporting evidence to suggest that the Complainant was not paid any salary, and was acting under exceptional circumstances when he left his duties without permission to collect food. In any event, all absences must be sanctioned by superiors. The Panel is also satisfied that the Complainant was drunk and threatened to damage the provincial property, the generator. There is overwhelming evidence to suggest that the Complainant was too drunk to remember anything. The Panel finds the evidence of Mr. Pongi more believable than the Complainant's version.

As an employer, the Respondent had all the right to make a determination of whether the Complainant's action is gross misconduct. The Complainant was at the relevant time, the holder of the post of Clerk of the Rennell and Bellona Provincial Assembly. He was expected to act in a manner consistent with the office he holds. The office he holds demands full compliance with the Public Service instructions (PSI). The fact that he left his job without authority, and threatened to damage provincial government property are in the Panels view fair reasons for dismissal. The Respondent had dealt with the Complainant's conduct under the relevant disciplinary provisions of the PSI. In the Panel's view, the Respondent had acted reasonably in treating the reason as sufficient for dismissing the Complainant.

In all the circumstances, the Panel finds that the Complainant's dismissal was fair, and the claim is accordingly dismissed.

There is a right of appeal to the High Court within 14 days on points of law only.

Dated the 16^th of January 2011

On behalf of the Panel

Wickly Faga
DEPUTY CHAIRMAN/TDP