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Heritage Park Hotel v Attorney General [2024] SBHC 163; HCSI-CC 162 of 2020 (2 August 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 162 of 2020

BETWEEN

HERITAGE PARK HOTEL
Appellant

AND:

ATTORNEY GENERAL
(Representing Trade Dispute Pane)
First Respondent

AND:

RANGAMAE LUKE
Second Respondent

Date of Hearing: 5 July 2024
Date of Ruling: 2 August 2024

For Appellant: Upwe B
For First Respondent: H Lapo
For Second Respondent: Rarumae (NA)

JUDGMENT

Kouhota PJ

The Second Respondent is a former employee of the Appellant. The Appellant dismissed him in June 2015. The Second Respondent filed proceeding against the Appellant with the Trade Dispute Panel (the First Respondent) which awarded the Second Respondent $13,300 for wrongful dismissal.

This is an appeal by Heritage Park Hotel against the Trade Dispute decision pursuant to section 13 of the Trade Dispute Act, Cap 75. The Appellant’s ground of Appeal were as follows;

1. The First Respondent- Trade Dispute Panel erred in law and in fact in its finding in that the Trade Dispute Panel adjudged and made an order against the Appellant who in law does not exist. The Appellant’s legal name is “Heritage Park Hotel Limited” incorporated under the Companies Act 2009 under Certificate No 1000022. Hence, the Appellant is not liable for such an order.
2. The First Respondent-Trade Dispute Panel erred in law when it adjudged that ‘the appellant are barred on the grounds that they failed to attend panel hearing despite being served with notice on 21^st March 2016 for the hearing date on 20^th April 2016 as per paragraph 4 of the ruling. In fact the First Respondent- Trade Dispute Panel erred because there was no effective service made to the Respondent pursuant to Rule 16 (3) of the Trade Dispute (Unfair Dismissal & Redundancy Procedure Rules) for the hearing date on 3^rd March 2015, 20^th October 2015 and 20^th April 2016, and the full hearing on 24^th August 2016. Hence a statutory breach because the Appellant was not given an opportunity to be heard.
3. The First Respondent-Trade Dispute Panel erred in law and in fact, to make the Award that is unreasonable and excessive without any basis. In fact, the Complainant was not paid at a rate of $950/fortnight as per finding at paragraph 17 of the ruling. On average, the complainant earns $500/fortnight approximately pursuant to his Employment Contract signed on 30^th May 2011. Hence, the Trade Dispute Panel was wrong to award $13,300.00 to the Complainant without any evidence, a finding that a reasonable tribunal would not have made.
4. The First Respondent-Trade Dispute Panel erred in its finding for the reason that it took 3 years 6 months and 6 days from the purported hearing date on 24^th August 2016 to 6^th March 2020 when it delivered its ruling. The undue delay had caused the finding of facts did not support the award given to the Complainant. A finding that a reasonable tribunal would not have made.

I will deal with the appeal grounds in the order they appeared on the notice of Appeal filed on 3/4/2020. In making this judgment I had considered the written submissions of counsel for the parties but I do not wish to make any specific reference to them as every submission are on the record and the file.

The Appellant in ground one of the notice of appeal states, the First Respondent, Trade Dispute Panel erred in law and in fact in its finding that the Trade Dispute Panel adjudged and made orders against the Appellant who does not exist. The Appellant legal name is Heritage Park Hotel Limited in cooperated under the Companies Act 2009 under certificate No. 000022. Hence, the Appellant is not liable for such an orders.

It is true that the legal name of the Appellant was not completely stated when the word Limited was omitted after the name Heritage Park Hotel. In any event, I think I can take judicial notice of the fact that people in Honiara always referred to the Appellant as Heritage Park Hotel without the word limited. The word limited added after the Appellant’s name in my view only refers what type of person the Appellant is or his status hence it, is not necessary part of the name of the Appellant but it is short of a title of the entity like when the word Sir is added after the name of a person who has been knighted.

In any event, I consider that when the Second Respondent sued the Appellant he meant to sue the Appellant and not someone else. The Appellant had respond to the claim against it but made no complaint about the name at that time. I am also satisfied there are no two entity or more in Solomon Islands bearing the name of Heritage Park Hotel and the Second Respondent was not mistaken as to the actual Defendant when he sued the Defendant/Appellant. So in effect, the Appellant is the same entity, but its status or title was omitted. Usually naming a wrong co-operated entity in a proceeding is misnomer that can be correct on application of the person wrongly named. However, in the present case, I considered that a wrong person had not been named but only it’s the status was omitted.

I also consider the Trade Dispute Panel had in mind the Appellant when they made the orders against the Defendant /Appellant. They do not have anyone else in mind because there is only one Heritage Park hotel in Solomon Islands. For the reasons stated herein, the first ground of appeal is dismissed.

The Second ground of appeal is that the First Respondent barred Appellant on the ground that it had failed to attend the panel hearing despite being served with notice on 21^st March 2016 for hearing on 20^th April 2016. That the Trade Dispute Panel erred because there was no effective service made to the Respondent pursuant to Rule 16 (3) of the Trade Dispute (Unfair Dismissal & Redundancy Procedure Rules) for the hearing date on 3^rd March 2015, 20^th October 2015 and 20^th April 2016, and the full hearing on 24^th August 2016.

I had checked the record and found that notices were issue to the Second Respondent were by letters, which were copied to the Appellant. I think service by mail complied with the rules on service of document in the Trade Dispute Panel rule 16(3) and of the Trade Dispute Panel (Unfair Dismissal and Redundancy) Procedure rules.

Rule 7(1) states “A respondent shall within 21 days of receiving the copy of the complaint enter an appearance to the proceeding by presenting to the Secretary a complete notice of appearance in triplicate in Form B in the schedule.”

Rule 7.2 states “A respondent who has not entered an appearance shall not take any part in the proceedings”

I had checked the file and found that the Appellant entered an appearance as required by rule 7.2. In view of this I am satisfied that the Trade Dispute Panel erred in excluding the Appellant from the proceedings and on that basis, the second ground of appeal is allowed.

The third ground of appeal was The First Respondent-Trade Dispute Panel erred in law and in fact, to make the Award that is unreasonable and excessive without any basis. The Appellant says the Complainant/Second Respondent was not paid at a rate of $950/fortnight as per finding at paragraph 17 of the ruling.

The Appellant says, on average the complainant earns $500/fortnight approximately pursuant to his Employment Contract signed on 30^th May 2011. Hence, the Trade Dispute Panel was wrong to award $13,300.00 to the Complainant without any evidence, a finding that a reasonable tribunal would not have made.

I had perused a copy of the contract of employment singed between the Appellant and the Second Respondent dated 30^th May 2011 and found the Second Respondent’s salary as stated in clause 6 of contract of employment is $5.25 cent per hour. If that was calculated on an 8 hours, a day of work the Second Respondent would be earning is $42 per day or $420 per fortnight if he worked 10 days in a fortnight, that is equivalent to the minimum wages in Solomon Islands. In that respect I do not know how the First Respondent, the Trade Dispute Panel arrive at $13,000 they awarded to the Second Respondent. The First Respondent did not show how and why they arrive at that amount. In view of this, the Court considered the First Respondent erred in its award to the Second Respondent and upheld the Appellants third ground of appeal.

With regard to appeal ground number 4, it is true the Panel unreasonably took long time to make its decision and award but there is no evidence that undue delay had caused the finding of facts did not support the award given to the Complainant. For this reason appeal ground number 4 must be dismissed.

In view of the Court findings, the Appeal is allowed and the Trade Dispute Panel’s decision and award are quashed and dismissed.

Orders

1. Appeal allowed and decision had amend of Trade Dispute Panel quashed.
2. Cost for Appellant to be taxed if not agreed.

THE COURT
Emmanuel Kouhota
Puisne Judge