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Alakeni v Pacific Casino Hotel [2019] SBTDP 1; UDF 27 of 2015 (15 July 2019)

IN THE TRADE DISPUTES PANEL
SOLOMON ISLANDS

CASE NO. UDF 27/2015

BETWEEN:

Delmay Horonala ALAKENI
(COMPLAINANT)

AND:

Pacific Casino Hotel
(RESPONDENT)

Date of hearing: 12/09/2018

Date of award: 15/07/2019

FINDING

1. The Complainant lodged to the Panel (TDP Form 1) on 02/04/2015. The Complainant claimed she was unfairly dismissed by the Respondent on 08/02/2015. The grounds for her complaint were stated as follows:
   
   1. No natural justice; and
   2. Unfair termination.
      
2. The Respondent filed notice of appearance (TDP Form 2) on the 20/04/2015 stating the dismissal was fair.
   

Relevant facts

3. The Complainant works as a Restaurant Supervisor at the Pacific Casino Hotel at the time of her termination, her employment with the Respondent commences on the 09/05/2008 to the day of her termination, 08/02/2015, a period of 6 years and 8 months.
   
4. The Complainant gave oral evidence and called no other witness.
   

Her evidence the Panel heard that she started working with the Respondent as Waitress and later became a Cashier and was promoted to a Restaurant Supervisor a duty she was performing at the time of her dismissal from her employment.

5. The Complainant gave evidence that the termination letter was handed to her by a work mate and was never called by her Manager or the Human Resource Manager to be told of her termination.
   
6. The Complainant did not dispute the reasons for her termination, she did not give any evidence to explain why on the 07/02/2015 at the place of her work did clocked in for work and left her assigned place of work without authorisation from her Manager and the allegation that she was drunk when she called in for work.
   
7. The Complainant was asked during cross examination if she was aware of the company’s rules and policies, her response was affirmative. She was also asked if she had received warning letters before for being drunk and absent from work, her response was also affirmative.
   
8. The Respondent elected to call one Mr. Rimiol David as a witness. He is the Respondent’s Human Resource Manager. In his evidence the Panel heard that the Respondent have written warning letters to the Complainant and have been very lenient to the Complainant as an employer.
   
9. The Respondent’s witness told the Panel that a first warning letter (Exhibit 2) dated 05/01/2012, this was for the Complainants involvement in a fight with a co-worker, and this was a contradiction to the company code of conduct and the company policy.
   
10. The second letter was for a one month suspension (Exhibit 3) dated 17/01/2012 for the Complainant being drunk and absent from work on the 17/01/2012 without good reason and was suspended from 18/01/2012 to 18/02/2012.
    
11. The third letter was a final warning letter (Exhibit 4) for the Complainant being drunk and absent from work on the 06/01/2013. The Respondent’s evidence was that despite these warning letters she was not terminated from her employment.
    
12. The fourth letter dated 11/07/2014 was another warning letter (Exhibit 8) for the Complainant being negligence of her duty on the 09/7/2014.
    
13. The fifth letter (Exhibit 4) was again a warning for the Complainant being drunk and absent from work on the 03/02/2015.
    
14. The Panel hear that the sixth letter (Exhibit 1) was the Complainant’s termination letter dated 09/02/2015.

The letter of termination followed after the Complainant on the 07/02/2015 came in to her place of work and clocked in for work that day.

However she left her place of work as she was drunk and again absent from work without the authority of her Manager or employer.

These were all contradiction to company’s policy and her work place code of conduct.

LAW

15. Unfair Dismissal Act [Cap 77] Section 4(1) (a)(b) “Fair and Unfair dismissal” which states;
    

“4. (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; and

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

16. The Panel in determining whether the termination was fair or unfair these two questions must be asked and answered;
    

Question 1

1. Was the reason for dismissing the Complainant substantial and of a kind justifying a

dismissal of an employee holding the Complainant's position?

In answering the first question the Panel heard on the evidence and was satisfied that the Complainant have been warned five times in writing by the Respondent. The Panel heard that three of the warning letters were being for the Complainant being drunk and absent from work, the final termination letter was also for being drunk and absent from work.

All the evidences considered together, the Panel is of the view that these written warning letters constitutes reasons substantial enough to terminate the Complainant.

Having said that, and in all the circumstances, the Panel finds that the reason for terminating the Complaint was substantial, and is of a kind justifying a dismissal of an employee holding the Complaint's position.

Question 2

2. Did the employer acted reasonably in treating that reason as sufficient in terminating the complainant?
   

The Panel answers the second question in an affirmative form.

The Panel noted that the five warning letters were more than enough warnings.

In the administrative procedures of discipline in the work place two written warnings would substantiate a dismissal of an employee, in this Complainant’s case she was given five written warnings.

A warning letter in any instance is intended to remind the employee to correct a mistake and to improve performance, this was not the case in the Complainant case, and she repeatedly made the same mistake as evident in the warning letters.

Therefore in the Panel’s view, the Respondent acted reasonably in treating these warning letters as sufficient in terminating the Complainant from her employment.

Natural Justice

17. The principles of natural justice comprise of the following two limbs:
    
    1. The rule against bias (nemo iudex in causa sua – no one should be a judge in his/her own cause);
       
    2. The right to a fair hearing (audi alteram partem – hear the other side).
       
18. This calls for fairness and therefore in all circumstances the Respondent must act fairly, in good faith and without bias afford the Complainant the opportunity to adequately state her case. This also means an opportunity and adequate time to be informed of the allegations and to reply to the allegations.
    
19. The Panel have noted that adequate time have been offered by the Respondent for the Complainant to correct her mistakes and improve her performance from the time of the first warning letter 2012 to 2015 the year which the Complainant was terminated.
    
20. The Panel is of the view that the onus was on the Complainant to correct her mistakes through the years and three years was enough, therefore the Respondent complied with the rule of natural justice in those circumstances.
    

ORDERS

21. The Panel makes the following Orders;
    
    1. That the termination of the Complainant was fair and lawful by virtue of the Unfair Dismissal Act [Cap 77] Section 4(1) (a) (b).
       
    2. Any claim made by the Complainant before the Panel is dismissed accordingly.
       
    3. No Panel expenses ordered.
       

APPEAL

22. 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