IN THE TRADE DISPUTES PANEL OF SOLOMON ISLANDS

Case No: UDF 26 of 2008

IN THE MATTER of the Unfair Dismissal Act 1982

AND IN THE MATTER of a complaint of Unfair Dismissal

BETWEEN:

SILAS LUDAFO'OA
Complainant

AND:

MILLENIUM CLOSE PROTECTIVE SECURITY
Respondent

Hearing: 24 March, 2009, Honiara.
Decision: 24 April, 2009.
Panel: Wickly Faga Deputy Chairman
 Gabriel Waleora'a Employee Member
 Sika Manupangai Employer Member
Appearances: Sophia Munamua, for the Complainant
 No appearance (Barred), for the Respondent

FINDING

A complaint of unfair dismissal was filed with the Panel Secretary by the Public Solicitors Office on behalf of the complainant on the 26th of May 2008. The complainant claimed unfair dismissal on the following grounds; 

1.	Failure to afford natural justice.

2.	Company did not give a warning.

3.	Dismissed on false allegation that [I was] intoxicated during working hours. 

The complainant was employed by the respondent company, Millennium Close Protective Security Service, as a Security Guard. His employment with the Company commenced on the 6th May 2006 and ended on the 2nd March 2008.

The respondent failed to make an appearance and admit or deny that it dismissed the complainant, even though it was given the opportunity to do so. The Panel Secretary wrote a letter dated 1/09/08 with enclosures advising the respondent through the General Manager to complete the TDP2 Forms and return for further action within 21 days from the date of receipt of those forms. By a letter dated 6/11/08, the respondent was informed of the prehearing of the matter, and further advised that it had not returned the forms within the time allowed, and if it wished to take part in the proceedings it must apply for an extension of time under rule 13 (1) of the Trade Disputes Panel (Unfair Dismissal and Redundancy) Procedure Rules, cap 75(the rules). During a further prehearing of the matter on the 10 February 2009, the complainant's solicitor made an application to bar the respondent under rule 13 of the rules. The application was granted. The matter was then listed for full hearing on the 24th March 2009. 

During a full hearing of this matter, the Panel heard only the evidence of the complainant. In his evidence, the complainant told the Panel that he was employed as Security Guard with the respondent since May 2006 and was dismissed in March 2008. He said in evidence that his job involves looking after some Chinese Shops in Honiara. He usually works from 6pm until 6am, and works 7 days a week. 

The complainant also told the Panel that his dismissal came after he was absent on 1 March 2008. In his evidence he told the Panel that his absence on that particular day was because he was too tired for overworking as the respondent did not give rest days. He also admitted being absent on a few occasions but his absence during those times was due to him being sick. 

According to the complainant's evidence, he called at his place of work, KLC Store at Point Cruz, on the evening of 2nd March 2008 to start his night shift, but was told by his boss, Mr. Leonard Kwai, that he had been terminated from his employment. Mr. Kwai alleged that the complainant was drunk during working hours. The complainant denied that he was drunk during working hours. The complainant offered to explain his side of the story but Mr. Kwai refused to listen and ordered him to leave the Store premises. The complainant told the Panel that he could have explained himself to him had he been given the chance to do so. No such opportunity was afforded.

He also said in evidence that there was no termination letter, except a plain paper written during that time, was tendered to him advising that he had been terminated. The complainant also said that no warning was issued to him before his termination. He is currently living at Vara Creek in Honiara, and had been unable to secure any job since termination. 

In closing submission, the complainant's counsel, Ms Sophia Munamua submitted that her client was working for the respondent since May 2006 until his termination on the 2nd March 2008. The complainant was not paid any holiday entitlements and that in fact he had been working seven days a week. His shift is from 6pm to 6am. Ms. Munamua also submitted that the complainant was terminated at his place of work being KLC Shop where he was based as Security. He was not given any formal termination letter. He was only given a piece of paper informing of his termination. Counsel also submitted that no mention or prior warning that he would be terminated. Most importantly the complainant was not given any opportunity to explain his side of the story to his boss, Mr. Kwai. On those evidences, Ms Munamua submitted that her client was unfairly dismissed by his employer, and sought on her client's behalf, an appropriate compensation.

The Panel would first have to consider whether the complainant had been dismissed. Under normal circumstances, the respondent would admit or not that it dismissed the complainant. The respondent in this matter failed to file an appearance, and was subsequently barred. The Panel therefore had to resort to the available evidence before it to establish whether the complainant was dismissed. The complainant said on oath that on the evening of 2nd March 2008, he turned up at his place of work, being KLC Shop, to commence his night shift. However, his boss, Mr. Kwai told him that he had been terminated, and handed him a note purported to be a termination letter. He was told that the reason for his termination was that he was alleged to have been drunk while on duty. The complainant denied the allegations and made attempts to explain his side of the story, but Mr. Kwai would not listen, and instead told the complainant to leave the shop premises. After due consideration of the complainant's evidence, the Panel is satisfied that the note that was given to the complainant is a termination letter. That being so, the Panel is satisfied that the complainant had been dismissed by the respondent.

Having established that the complainant was dismissed, the next question that the Panel needs to consider is whether the complainant had been dismissed for a substantial reason of a kind justifying his dismissal, and that in all the circumstances, the respondent had acted reasonably in treating the reason as such. The complainant gave evidence that the justification by the respondent for his dismissal was that he was drunk while on duty. The complainant denied the allegation that he was drunk while on duty. Drinking whilst on duty in a job as that of a security is a serious matter, and if proven the dismissal is a fair dismissal. The complainant denied the allegation. In the absence of evidence to show that he was drunk while on duty, it is to be taken that the complainant was not drunk while on duty. The complainant's dismissal was therefore unfounded and accordingly is an unfair dismissal. It is not necessary then to consider whether the respondent had acted reasonably in treating the reason as such.

The Panel took time to consider the evidence of the complainant and is satisfied on the balance of probabilities that the complainant's termination was made on allegation that the complainant was drunk during working hours; one that the complainant himself had denied. He sought to explain his story but the respondent would not listen, and his employment with the respondent was subsequently terminated.

In awarding compensation, the Panel took into consideration the following factors; that the complainant had not been warned previously, his termination was on false allegation, he had not taken his leave during a period of 18 months preceding his termination, and that the complainant was not able to secure any job after he was terminated. In all the circumstances, the Panel makes a fair and reasonable compensation pursuant to section 7 of the Unfair Dismissal Act 1982 [cap77]. This is calculated as follows:

1. Wages in Lieu of notice (1 month)	= $1,082.00	
2. Loss of earnings (6 months)	= $6,492.00	
	__________	
TOTAL	$7,564.00	

AWARD

The respondent unfairly dismissed the complainant and is to pay compensation to Silas Ludafo'oa in the sum of $7,564.00 being payable immediately and is recoverable as a debt under section 10 of the Unfair Dismissal Act 1982 [cap 77].

COSTS 

The respondent is ordered to pay $500-00 towards Panel expenses within 14 days from receipt of this finding.

APPEAL 

The appeal provisions under the Unfair Dismissal Act 1982, Trade Disputes Act 1981, Trade Disputes Panel (Unfair Dismissal & Redundancy Procedure) Rules 1981 and The Solomon Islands Courts (Civil Procedure) Rules 2008 apply to this finding. 

Dated the 24th of April 2009.

On behalf of the Panel

Deputy Chairman/TDP