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Manetiva v Diocese of Central Solomon [2018] SBTDP 7; UDF 18 of 2016 (2 August 2018)

IN THE TRADE DISPUTES PANEL

SOLOMON ISLANDS CASE NO. UDF 18/2016

BETWEEN:

David MANETIVA
(COMPLAINANT)

AND:

Diocese of Central Solomon
(RESPONDENT)

Panel: 1. Willy Vaiyu – Deputy Chairman
2. Yolande Yates - Employer Representative
3. Edward Bamu - Employee Representative

Appearances: Barry Kepulu for the Complainant

Andrew Radclyffe for the Respondent

Date of Hearing: 30/08/2017
Date Finding Delivered: 2/08/2018

FINDING

1. By complaint lodged to the Panel (TDP Form 1) on 23/03/2016, the Complainant claimed he was unfairly dismissed by the Respondent on 15/01/2016. The grounds for his complaint was stated as follows:
   

1. No substantial reasons to warrant the termination.

2. The Respondent filed notice of appearance on 20/05/2015on which denied the claims stating the Complainant’s dismissal was procedural.
   
3. At the hearing the Respondent elected to call no witness and to relay on Exhibits and submissions, on the other hand the Complainant gave oral evidence and called no other witness.
   

Relevant facts

4. The Complainant was employed by the Respondent as the Diocesan Secretary of the Diocese of Central Solomon. His employment commences on 06/01/2014 (Exhibit 5). Before the Complainant left employment he was issued with one warning letter dated 8/7/2015 from the Respondent for being inactive in relation to administering office matters and being unfair to some employees regarding fringe allowances (Exhibit 6).
   
5. The evidence of the Complainant was that he was handed the letter of notice dated 24/12/2015 (Exhibit 1) by a shopkeeper. The letter was a three months’ notice to the Complainant to vacate the office of the Diocesan Secretary of the Diocese of Central Solomon that he was occupying.
   
6. The Panel heard that the Complainant signed a five year contract of employment on the 07/01/2014 (Exhibit 5) renewable depending on performance of the incumbent. One of the conditions of the contract was that it can be terminated by either party giving three months’ notice to the other party in writing or pay three months’ salary in lieu of notice.
   

On page 4 of the contract against the signature of the Complainant has the following statement;

“I hereby agree and put my signature to this letter having accepted the terms and conditions of the offer as outlined above.”

Below this above statement the name of Complainant was scribed, signed and dated 07/01/2013 (should have been 2014 the year was wrong).

7. The Respondent submitted to the Panel that they relied on clause 13 of the contract which states;
   

Termination

“Either yourself or the General Secretary may give three months’ notice of termination of employment in writing or 3 months’ pay in lieu of notice.”

8. It is a general rule that person or body appointing has the power to suspend or remove the person appointed. Therefore it was proper that the Bishop of the Diocese of Central Solomon was the author of the letter of notice date 24/12/2015. Therefore words General Secretary in the above citation should have read Bishop of Diocese of Central Solomon as submitted by the Counsel for the Respondent.
   

Law

9. Section 2(1) of the Unfair Dismissal Act [Cap 77], Right not to be unfairly dismissed states;
   

“Subject to the following provisions, every employee has the right not to be unfairly dismissed by his employer.”

What this clause is simply saying is, an employer can dismiss an employee but the dismissal must not be unfair but rather fair.

10. The meaning of Dismiss is provided for in Section 3 of Unfair Dismissal Act [Cap 77] which states;

“For the purposes of this Act, an employee is dismissed by his employer if and only if;

(a) the contract under which he is employed is terminated by the employer (by notice or otherwise);

(b) the contract under which he is employed is a fixed term contract and the term expires without being renewed under the same contract; or

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which, by reason of the employer's conduct, the employee is entitled to terminate it without notice. (Bold, underline, italic Panel emphases)

Clauses (a) and (b) of Section 3 of the Unfair Dismissal Act [Cap 77] as stated above at paragraph 7 was actually a condition of the contact signed on the 07/01/2014 between the Respondent and the Complainant.

11. Section 3(a) of the Unfair Dismissal Act [Cap 77] and clause 13 of the contract do not require the employer or the Respondent or the Complainant to substantiate the reason for such dismissal under this Section the only requirement for a dismissal under this Section is a notice which was fulfilled by the Respondent.
    
12. The Panel is of the view that Section 4 of the Unfair Dismissal Act [Cap 77] do not apply in those circumstances in this case. The Panel is also of the view that the letter of notice was not a termination letter as purported by the Complainant, but rather a three months’ notice informing the Complainant to vacate the office he was occupying after the laps of the three months’ notice. This was in accordance with Section 3(a) of the Unfair Dismissal Act [Cap 77] and clause 13 of the contract of his employment. The purpose of the notice was to inform the Complainant, as in this case and for the Complainant to prepare to exit and to give the Complainant ample time to look for another employment elsewhere.
    
13. In this instance the Anglican Church of Melanesia General Terms and Conditions of Employment for Church Lay Employees Section 7, Disciplinary Procedures cannot be applied here since the letter of notice was not a disciplinary letter as there was no misconducts alleged by the Respondent against the Complainant.
    
14. Was the Complainant unfairly dismissed by the Respondent? Was he terminated by the Respondent on the 15/01/2016? The Panel answers both questions in the negative noting that the Complainant left the office of the Diocesan Secretary of the Diocese of Central Solomon after receiving the letter of three months’ notice from the Respondent which was not the purpose of the letter.
    

Order

1. Section 3(a) of Unfair Dismissal Act [Cap 77] and Clause 13 of the Contract of Employment is applicable in this case.
   
2. That Section 4 of the Unfair Dismissal Act [Cap 77] do not apply in those circumstances of this case.
   
3. That there was no need for the Respondent to substantiate reasons to warrant the termination of the Complainant as his dismissal was procedural in accordance with Section 3(a) of Unfair Dismissal Act [Cap 77] and his employment contract Clause 13, therefore any pecuniary claims in relation to his dismissal is refused and dismissed accordingly.
   
4. That there is no outstanding payments due to the Complainant as that has been settled by the Respondent.
   
5. Pursuant to Section 11 of the Trade Disputes Act 1981as read with Section 11(2) of the Unfair Dismissal Act [Cap 77] the Panel orders the Complainant to pay Panel expenses in the sum of $1,000.00 to the Ministry of Commerce, Industry Labour & Immigration within 14 days of receipt of this Order.
   

Appeal

15. There is a right of appeal within 30 days by any aggrieved party to the High Court on question of law only pursuant to Section 13 of the Trade Disputes Act 1981as read with Section 11(1) of the Unfair Dismissal Act [Cap 77].
    

On behalf of the Panel,

Willy Vaiyu.
Deputy Chairman
Trade Dispute Panel