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Wai v Woodford International School [2021] SBTDP 2; UDF 99, 100, 101 of 2017 (5 May 2021)

IN THE TRADE DISPUTES PANEL

SOLOMON ISLANDS CASE NO. UDF 99, 100, 101/2017

BETWEEN:

Sally WAI & Others
(COMPLAINANT)

AND:

Woodford International School
(RESPONDENT)

Panel: 1. Willy Vaiyu - Deputy Chairman
2. Eric Matangi - Employer Representative
3. Rose Bala’a - Employee Representative

Appearances: - Berry Kepulu for the Complainant

- Andrew Radclyffe for the Respondent

Date of Hearing: 21/04/2021
Date Finding Delivered: 05/05/2021

FINDING

1. This is a case involving 3 former employees (Complainants) of Woodford International School, the Respondent.

They are Ms. Sally WAI, Ms. Agnes FONO and Ms. Edna MAUTAI.

All of the 3 complainants signed their contracts of employment (Exhibit 1) on the 02/12/2016 all of their contracts commences on the 16/01/2017 and ends on the 31/12/2017.

The Panel has dealt with all 3 complainants together as these matters have been consolidated as the issues are the same.

Relevant facts

2. By complaint lodged to the Panel (TDP Forms 1) (Exhibit 4) by all the Complainants on the 15/09/2017, the Complainants claimed they were unfairly dismissed by the Respondent on 23/06/2017 (Exhibit 2 – Termination letter).

The ground for their complaint was stated as follows:

1. Unfair dismissal.

3. The Respondent filed notices of appearance (Exhibit 3) on 17/10/2017on which they denied the claims citing the Complainant’s dismissal was procedural and in compliance with clause 8 of their employment contract (Exhibit 1).
   
4. Both parties have agreed to file written submissions and that there will be no verbal submissions but to relay on documents filed and the written submissions as there will be no witness to be called for tendering any further document or giving further evidence.
   
5. Ms. Wai and Ms. Mautai were employed by the Respondent as Tuck Shop Assistant and Ms. Fono as Tuck Shop Coordinator.
   
6. In their submissions Mr. Kepulu acting for the Complainants argued that the bases for the Complainants complains is on Section 4 (1) (a) & (b) of the Unfair Dismissal Act [Cap. 77] 1996 which states;
   

"Fair" and "unfair" dismissal

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. (Italic Panel emphasis)

7. Mr. Kepulu failed to see that there are different types of dismissing an employee from their employment which must be fair rather than unfair.

Fair dismissal cases are those that involves termination on bases of capability of employee, conduct of employee, redundancy and those that relate to existing laws, for eg. the law of contract which governs and regulate the terms and conditions of employment contract or any other contracts for that matter.

A truck driver will be dismissed for eg. from employment because of his expired drivers licence, he cannot drive according to traffic laws.

8. Employer substantiating reasons for a dismissal must be done in cases involving summary or immediate/instant dismissal cases (cases involving violence, destroying/damaging of property, theft, etc by an employee).

Were the terminations of the Complainants instant so that Section 4 (1) (a) & (b) of the Unfair Dismissal Act can be invoked? No, they were dismissed after a one month notice was given as stipulated in clause 8 of their employment contracts (Exhibit 1).

9. The Complainants submissions also fail to see Section 3 (a) of the Unfair Dismissal Act [Cap. 77] 1996 which states;
   

Meaning of "dismiss"

3. 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); (Bold, underline and Italic Panel emphasis)

10. The question again is, was there an employment contract signed by the Complainants with the Respondent? The answer is, YES! Was the termination fair and according to their employment contract and the Law?

The answer again is Yes! Clause 8 of their contract and Section 3 (a) of the Unfair Dismissal Act. Cited above paragraph 9.

Clause 8 of their employment contracts (Exhibit 1) states;

Termination

‘This contract may be terminated by either party by giving the other one months’ notice in writing.”

11. There were 2 conditions in their contract (Exhibit 1) in which an employee will be dismissed or terminated,
    
    1. Either the employer or the employee terminates the contract by a one month prior written notice (Clause 8)
    2. Employee receiving 2 warning letters from the employer for failure to perform (Clause 9).
       
12. The Complainants advanced in citing 3 TDP cases, the case of David Manetiva v Diocese of Central Solomon UDF: 18/2016, Chris Bodau v Heritage Park Hotel UDF: 21/2015 and the case of Melody Maemania & Others v Heritage Park Hotel UDF: 22, 23 & 25/2015.
    
13. All these 3 TDP cases cited by the Complainants involved written contract of employments. In Manetiva the Panel ruled that the termination was fair according to Law and the contract signed by the complainant.

In Bodau and Maemania the terminations were according to their contract of employment they signed with the respondent but the rule of natural justice was not observed by the respondent therefore the Panel ruled in favour of the complainants in both cases.

14. The circumstances in Manetiva and this case is similar, there was a contract, there was a prior written notice and there was no breach of the employment contract but fulfilment of the conditions in the employment contracts signed by the complainants.

In Bodau and Maemania there was a contract, conditions in the employment contract were breached by the complainants, resulting in their termination.

15. There was no opportunity given to the complainants in Bodau and Maemania to state their side of the story (rule of natural justice), that opportunity was denied for the complainants to state why there has been a breach of the conditions of their contract.

The Panel ruled in favour of the complainants in Bodau and Maemania and is unable to apply that same principle in this case as already stated.

16. In this case, Complainants were dismissed because the contract under which they were employed was terminated by the employer by notice (Section 3 (a) of Unfair Dismissal Act) in other words, their contracts were terminated.
    
17. Why is there no application by the Panel of the rule of natural justice in this case and Manetiva?

This is because the terminations in both cases were not that of a breach of a contract or a summary dismissal that resulted in their terminations and that there was no other side story to be heard.

18. The Respondent submitted to the Panel that they relied on clause 8 of the contract cited above paragraph 10 and persuaded the Panel to follow its ruling in Manetiva.

The Panel is incline to follow Manetiva.

Law

19. 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.

20. 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)

21. Clauses (a) of Section 3 of the Unfair Dismissal Act [Cap 77] as stated above was actually a condition of the contact signed on the 02/12/2016 between the Respondent and the Complainants.
    
22. Section 3(a) of the Unfair Dismissal Act [Cap 77] and clause 8 of the contract do not require the employer or the Respondent to substantiate the reason for such dismissal under Section 3 (a), the only requirement for a dismissal under Section 3 (a) or otherwise pay in lieu of notice or a notice prior to the date of effect of termination which was fulfilled by the Respondent.
    
23. The Panel is of the view that Section 4 of the Unfair Dismissal Act [Cap 77] do not apply in the circumstances of this case.

Order

1. Section 3(a) of Unfair Dismissal Act [Cap 77] and Clause 8 of the Contract of their employment is applicable in this case.
   
2. That Section 4 of the Unfair Dismissal Act [Cap 77] do not apply in the circumstances of this case.
   
3. That there was no need for the Respondent to substantiate reasons to warrant the termination of the Complainant as their dismissal was procedural in accordance with Section 3(a) of Unfair Dismissal Act [Cap 77] and their employment contract Clause 8.
   
4. Any pecuniary claims in relation to their dismissal is refused and dismissed accordingly.
   
5. That there are no outstanding payments due to the Complainant as that has been settled by the Respondent.
   
6. 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 Complainants to pay Panel expenses in the sum of $2,500.00 to the Ministry of Commerce, Industry Labour & Immigration within 14 days of receipt of this Order.

Appeal

24. 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