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Saolimae v Rock Haven Ltd [2018] SBTDP 8; UDF 78 of 2016 (8 August 2018)

IN THE TRADE DISPUTES PANEL
SOLOMON ISLANDS

CASE NO. UDF 78/16

BETWEEN:

Nathaniel Saolimae
(COMPLAINANT)

AND:

Rock Haven Ltd
(RESPONDENT)

Date of hearing: 21/6/2018

Date of award: 08/08/2018

-

FINDING

1. By complaint lodged to the Panel (TDP Form 1) on 07/12/2016, the Complainant claimed he was unfairly dismissed by the Respondent on 07/11/2016. The grounds for his complaint were stated as follows:
   

1. No notice of termination; and

2. No substantial reasons to warrant termination.

2. The Respondent was served with notice of appearance (TDP Form 2) with a letter dated 22/05/2017, at the laps of 21 days TDP Form 2 it was not returned and was never filed.
   
3. The Secretary to the Panel wrote a follow up letter to the Respondent dated 25/08/2017 asking the Respondent if they wish to take part in the proceeding they can apply for an extension of time to file TDP Form 2 under Rule 13(1) of the Trade Disputes Panel (Unfair Dismissal and Redundancy) Procedure Rules.

The letter also informed the Respondent to attend a prehearing on 27/09/2017, 9:00am at TDP Conciliation and Arbitration Centre, Honiara.

4. On the 27/09/2017 the Panel met and the Respondent did not appear.

The Complainant made an application to the Panel for the Respondent to be barred from actively taking part in the matters full hearing pursuant to Rule 7(2) of the Trade Disputes Panel (Unfair Dismissal and Redundancy) Procedure Rules and the application was granted by the Panel.

5. During the full hearing on the 20/06/2018 on which the Respondent was barred the Panel heard that the Complainant started working for the Respondent on the 11/07/2012 and was terminated on the 07/11/2016.

He has work for the Respondent for 4 years and 4 months.

6. The Complainant works as a security officer at the Rock Haven Motel (Respondent) and his evidence the Panel heard the reason for his termination was using force to open a guest room on the 05/11/2016 at the Motel without consent or making the management aware of the incident. In his evidence he said he call the Managing Director four times to inform him of a guest who has left his room key in the room he was using and the room was locked. The Managing Director Mr. Selwyn Riumana did not answer his cell phone. He was also contacted by the reception, he also did not answer the call the Panel was told.
   
7. The Panel heard that a Medical Doctor was using the locked room at that time and he was attending a workshop and he has to go but his papers for the workshop were inside the room. The Complainant after the attempting to call the Managing Director failed used a kitchen knife to open the locked room amidst his fellow security officers, the Doctor and his wife.
   
8. The Complainant said in his evidence that there was no damage to the door as alleged by the Respondent. He was issued with a warning letter the following day 6/11/2016 by the Managing Director of the Motel and issued with a termination letter on the 07/11/2016(Exhibit 1) the day after.
   
9. The Panel heard that he was not given any opportunity to explain his side of the story.

The Complainant went and made a complaint with the Commissioner of Labour who wrote to the Respondent on the 11/11/2016 (Exhibit 2) informing the Respondent to pay the complainant the following;

1. Payment in lieu of notice,
2. Redundancy payment,
3. Holiday based on pro-rata,
4. Reimbursement $400.
   

The Respondent made no respond to the letter from the Commissioner of Labour nor made any payment to the Complainant.

LAW

10. In unfair dismissal cases, the guiding principles in determining whether a dismissal is fair or not is found in Section 4 of the Unfair Dismissal Act, [Cap 77], which states:
    

"(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;

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

11. The Panel in determining whether the termination was fair or not these two questions must be asked;
    
    1. Was the reason for dismissing the Complainant substantial and of a kind justifying a dismissal of an employee holding the Complainant's position?
       
    2. Did the employer act reasonably in treating that reason as sufficient in terminating the complainant
       
12. The Panel answered both questions in the negative and that the reason for the termination was not substantial justifying a termination of an employee holding the Complainants position. The Respondent did not act reasonably in treating the reasons as sufficient in terminating the Complainant and therefore the Panel found the termination to be unfair in that circumstance.
    

AWARD

13. In awarding compensation, the Panel notes that the Complainant had worked for the Respondent for a period of more than 4 years. The Complainant has not secured any employment since termination on the 07/11/2016.
    

The Panel therefore awards;

1. Six months' salary as compensation to the Complainant for loss of employment,
2. Payment in lieu of notice,
3. Holiday based on pro-rata,
4. Repatriation costs.
   

These awards are calculated as follows;

(a) Six months’ salary;

Hourly rate - $10.00

8 hours worked per day - $80.00

Salary per week - $400.00
4 weekly pay days in a month

$400 x 4 x 6 months - $9,600.00

(b) Payment in lieu of notice;

$400 x 4 - $1,600.00

(c) Holiday based on pro-rata;

30 days x $80 - $2,400.00

(d) Repatriation Cost; - $1,000.00

Total pecuniary awarded - $14,600.00

14. The Panel therefore considers the sum of $14,600.00 as fair and reasonable in all the circumstances, taking account the conduct of the employer and the Complainant both before and after the date of termination.
    

ORDERS

15. The Panel makes the following Orders;
    
    1. The Respondent is to pay the sum of $14,600.00 as compensation to the Complainant for unfair dismissal within 14 days of this Order.
       
    2. The Respondent to pay Panel expenses in the sum of $1,000.00 to the Ministry of Commerce, Industry Labour & Immigration pursuant to Section 11(2) of the Unfair Dismissal Act [Cap 77].
       

APPEAL

16. Pursuant to Section 7 (3) of the Unfair Dismissal Act [Cap 77] a party aggrieved by the amount of compensation awarded by the Trade Dispute Panel may within one month of the date of the award appeal to a Court.
    

On behalf of the Panel,

Willy Vaiyu.
Deputy Chairman
Trade Dispute Panel