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Kapule v Solomon Kitani Mendana Hotel [2021] SBTDP 5; UDF 12 of 2017 (2 November 2021)

IN THE TRADE DISPUTES PANEL
SOLOMON ISLANDS

CASE NO. UDF 12/2017

BETWEEN:

Mary Kanapu Kapule
(COMPLAINANT)

AND:

Solomon Kitano Mendana Hotel
(RESPONDENT)

Date of hearing: 03/06/2021

Date of Ruling: 02/11/2021

FINDING

1. Mary Kanapu Kapule, herein referred to as the Complainant, lodged with the Panel (TDP Form 1) on 24/03/2017, claiming she was unfairly dismissed by Solomon Kitano Mendana Hotel, herein referred to as the Respondent, on 11/01/2017. The grounds for her complaint were stated as follows:
   
   1. Unfair Dismissal,
      
   2. No natural justice.
      

Relevant Facts

2. The Complainant was employed by the Respondent as a Gardener/Cleaner. Her employment began on 01/11/2001. She did not state whether there was an employment contract signed with the Respondent. She has been working for the Hotel for 16 years and 2 months.
   
3. During the hearing the Respondent was barred from further taking part in the proceedings by virtue of TDPAct (Unfair Dismissal & Redundancy Procedure Rules) Rules. 8(4) on grounds of continual nonappearances before the Panel.
   
4. Before the termination of the Complainant the Respondent approved a 35 working days annual leave for the Complainant commencing on the 03^rd October 2016 to the 18^th November 2016 and should have resumed duty then.
   
5. The evidence of the Complainant the Panel heard that after she was paid her annual leave and leave passage she was unable to catch any ship to her home which is on Sikaiana Island in the Malaita Outer Islands because of unreliable francized shipping schedules to the island.
   
6. The Panel heard from the Complainants evidence that she requested that she continued to work until a ship is ready to sail for Sikaiana island but that was not granted but was told to wait for any available ship traveling to the island. On the 03/11/2016 she was informed of a ship sailing to the island and on the 11/11/2016 she eventually boarded the ship and sailed to her annual leave destination, Sikaiana island.
   
7. The Panel heard from the Complainants evidence that she was told the ship was going to return to the island in 2 weeks time, that was the reason why she decided to board the ship in the hope that the ship was going to return to the island in 2 weeks.

This part of her evidence is not accepted by the Panel as it was not supported by any witness.
The evidence of the Complainant the Panel heard that she was 32 days overdue.

8. In her evidence the Complainant said she has always gone on leave and always late but only one or two weeks late and would return to work and continued working but this was her first time to be more than 4 weeks late.
   
9. In cross examination the Complainant was asked if she ever call the Respondents office to inform them of her situation, her answer was no.

When questioned on any form of communications to Honiara, she said there was only 2-way radio. When asked if she made any attempt to call, her answer was no.

She only made contact with the Respondent on the day she arrived back in Honiara, that was on the 11/01/2017, the day she was also terminated.

10. She was also questioned if she knew of how many days were left before the end of her annual leave on the day she boarded the ship to Sikaiana island, her answer was yes, 1 or 2 weeks only left from her annual leave, when in fact there was only 7 days left from her annual leave.

The Complainant was also questioned if she ever sighted the company policy on annual leave, her answer was no. When questioned on if she has knowledge of the policy, her answer was yes.

11. The Complainant in her submission stated that while the company policy on absence without leave results in a summary dismissal for being absent for 48 hours without reasonable excuse, her absence, the 32 days absence was during her authorised annual leave therefore the absence was authorised.
    
12. The Panel is of the view that the Complainants authorised leave was from the 03/10/2016 – 18/11/2016. The absence from work from the 19/11/2016 – 11/01/2017 was supposed to be her working days and she was at home on Sikaiana island and not at work therefore the 32 days were unauthorised and absent from work.

Law

13. 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.

14. The Panel in determining whether the termination was fair or not these two questions must be asked and provide an answer;
    
    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 acted reasonably in treating that reason as sufficient in terminating the complainant?
       
15. In answering these two questions, the Panel heard on the evidence that the Complainant was absent for 32 days without informing her employer. The company policy states that 48 hours absent from work without reasonable excuse is summary dismissal of which she has knowledge. Was the 32 days absent without prior excuse or after the 48 hours (two days) with no attempt to contact her employer when there was a two-way radio available on the island a substantial reason for dismissing the Complainant?
    
16. The Complainant has the first 48 hours to contact her employer, she made no attempt even during the 32 days she was absent from work. She knew very well she was late for work after the end of her leave. She did not give any reason why she did not make any attempt to use the two-way radio to make any contact with her employer.
    
17. She knew her annual leave ends on the 18/11/2016, she knew she has a week (7 days) left of her annual leave, she knew very well the unreliable francize shipping schedule to and from Sikaiana island.

She has no explanation why she did not make any attempt to call her employer in those 32 days of absence from work.
She took the risk of losing her job, that was what she did.
She in fact contributed to her own detrimental.

Are these reasons sufficient for the Respondent to terminate the Complainant or any other employee holding her position?

18. The right to hire and fire is vested on the employer however, the Complainant reserves the right not have his job taken away from him unfairly, this is what the Law has to say about this,
    

Unfair Dismissal Act [Cap. 77] 1983 Section 2 (1) states;

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

Natural Justice

19. 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 own cause);
       
    2. The right to a fair hearing (audi alteram partem – hear the other side).
       
20. 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 his/her case. This also means an opportunity and adequate time to be informed of the allegations and to reply to the allegations.
    
21. The Principles of Natural justice is a must process for any two conflicting parties to follow and must be observed despite whatever employment Policy or Rules of a company or employer may say about employees conduct when performing or not performing their duties.
    
22. In the case of Simata v Goldie College Secondary School Board of Management [1998] SBHC 46; HC-CC 089 of 1997 (2 November 1998) the High Court in discussing Natural Justice cited the following;
    

“Although the question of denial of hearing, a denial of natural justice, in this case arises from a decision taken by a non public statutory entity, the approach in it to determine whether there has been denial of natural justice is the same as in cases in which the decider is a public statutory body. In the English Common Law, the duty of a decider not to take decision without offering opportunity to someone whose interest is affected to be heard, is implied. The duty is implied even when it is abundantly clear that the duty has been omitted in the empowering legislation. In Cooper -v Wandsworth Board of Works [1863] EngR 424; [1863] 14 CB (N.S) 180, the applicant commenced building his house without giving notice to the Board as required by statute. He built up to the second floor. One evening the Board dehed tilding without asut asking him to explain his omission to g to give notice. The Board had statutory power to demolish if notice had not been given. The Court at first instance upheld the submission of the applicant that although the Board had power under the statute, that power was qualified by the requirement of natural justice that a person whose proprietary interest is affected is to be afforded opportunity to be heard. Appeal Court confirmed. After Coopers' case, English couremed to have deve decided inconsistently, the approach to determining requirement of opportunity to be heard, but since 196the cof Ridge -v- Baldwin [1963] UKHL 2; [1964] AC 40, confirming Coopers' case,&#1e rule reqe requiring implying the duty to afford opportunity to be heard has been firmly restored.” (Italic, Bold & Unlined Panel emphases)

This cited passage above from a High Court ruling was a case where a Statute gives power to the Board to demolish a building because the builder did not follow a requirement of Statute, the Board went ahead and demolished the building as required by the Statute.

The Court ruled that the Rule of Natural Justice was not followed by the Board as there was no opportunity given to the builder to explain his omission to give notice to the Board.

24. In this current case was the Complainant denied natural justice? The Complainant wrote few letters giving reasons for being absent for 32 days from work. She was first issued with the termination letter dated 11/01/2017 (Exhibit 1). She made a brief reply in a letter dated 23/01/2017 (Exhibit 2). The Respondent made a response to her explanations dated 24/01/2017 (Exhibit 3) reaffirming their decision on the Complainants termination.
    
25. Among other issues with the Complainants she was occupying a house owned by the Respondent. Exhibits 4 and 5 were letters from the Respondent requesting the Complainant to vacate the residence.
    
26. In the Complainants attempt to excuse herself from the attached issues she wrote a letter to the Respondent dated 20/03/2017 (Exhibit 6) this was ignored by the Respondent who made no reply and the matter was reported the Commissioner of Labour.
    
27. In our view natural justice was accorded to the Complainant and upon consideration the Respondent reaffirm their decision (Exhibit 3) to terminate the Complainant based on the company policy (Exhibit 4) which states;
    

“Absence Without Leave

Absence from work without permission and without reasonable excuse is regarded as absence without leave. If you are absent without leave for more than 48 consecutive hours, you will be summarily dismissed.”

Two days is 48 hours, in this case the Complainant was absent 32 days without making any attempt to contact her employer.

28. The Panel answers both questions in paragraph 14, above in the affirmative form and that in our view the reasons for the termination were substantially justify a termination of an employee holding the Complainants position. The Respondent acted reasonably in treating the reasons as justifying and sufficient in terminating the Complainant and therefore the Panel found the termination to be fair in those circumstances.
    
29. This is a case of contributory negligence resulting in the Complainants own detriment.
    

ORDERS

30. 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. 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 Respondent to pay Panel expenses in the sum of two thousand dollars ($2,000.00) to the Ministry of Commerce, Industry Labour & Immigration within 14 days of receipt of this Order.
       

APPEAL

31. There is a right of appeal within 30 days from the publication of this ruling 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