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Dalipada v Ministry of Development Planning & Aid Coordination [2011] SBTDP 2; UDF 80 of 2010 (7 March 2011)

IN THE TRADE DISPUTES PANEL OF SOLOMON ISLANDS

Case No: UDF 80 of 2010

IN THE MATTER of the Unfair Dismissal Act 1982

AND IN THE MATTER of a complaint of Unfair Dismissal

BETWEEN:

STEPHEN KIDO DALIPADA
Complainant

AND:

MINISTRY OF DEVELOPMENT PLANNING & AID COORDINATION
Respondent

Hearing: 22nd February 2011

Decision: 7th March 2011

Panel: Wickly Faga Deputy Chairman
- Employer Member
Duddley Hoala Employee Member

Appearances: Allan Tinoni, Counsel for the Complainant

Andrew Radclyffe, Counsel for the Respondent

RULING

Learned Counsel for the Respondent, Mr. Radclyffe made an application for a ruling of the Panel on the issue of whether the Panel can exercise jurisdiction in the Complainant's unfair dismissal complaint. In his brief submission, Mr. Radclyffe stated that it was well established in the case of Wateoli-v-Public Service Commission [1988-89] SILR 25, that the Trade Disputes Panel does not have jurisdiction to hear unfair dismissal complaints by public officers.

It was counter argued by counsel for the Complainant, Mr. Tinoni, that the Complainant is not a public officer because he was employed under a contract of employment, so the Panel has jurisdiction to entertain the Complainants unfair dismissal complaint.

The case of Wateoli-v-Public Service Commission clearly established that the Panel can not hear unfair dismissal complaints by public officers. In that case, the appellant was dismissed by a decision of the Public Service Commission. He then filed a unfair dismissal complaint with the Trade Disputes Panel under section 6 of the Unfair Dismissal Act 1982. The Panel dismissed the complaint on the basis that it is not a court of law, so it can not exercise jurisdiction on any appeals from decision of the Public Service Commission. The High Court held that in spite of the express provisions of s.11(2) of the Unfair Dismissal Act, giving it effect in relation to government employees, the Panel was correct in finding that it was not a court of law and while it may not have been the intention of parliament to exclude government employees, section 11(2) is inconsistent with the Public Service Commission excersising its powers under the Constitution, and to that extent is void

The Panel notes from the Complainant's employment contract, (tendered by consent), that he was employed by the Minister for Development Planning and Aid Coordination, in his capacity as National Authorizing Officer for EU Funds. The Complainant was appointed by the said contract of employment to the position of Programme Cordinator within the EU project Rural Advancement of Micro Projects (RAMP). The said contract of employment was for a fixed period until the end of RAMP in 2012. His duties were specific to the EU funded Projects under RAMP. Clause 22 of the said contract of employment clearly stated the circumstances in which the contract may be terminated by either party. These includes giving not less than three months notice, or three months salary in lieu of such notice, or employee proving medical incapacity or the employee was found guilty of misconduct or serious breach of the terms of the contract.

After having taken time to consider submissions and the terms of the contract of employment, the Panel is persuaded to accept that, the Complainant's appointment as Programme Cordinator was made by virtue of his contract of employment signed on the 15/06/09. Based on the doctrine of privity of contract, where only the contracting parties to the contract can be affected by the contract itself, the Panel is of the view that despite the public nature of the Complainant's office, it was not a public office, but a creation by the contracting parties. The contracting parties in this case are, the Complainant himself as the employee, and the Minister for Development Planning and Aid Coordination in his capacity as the National Authorizing Officer for EU Funds as the employer.

The Panel therefore concludes that the Complainant's complaint is one it can exercise jurisdiction.

The Panel therefore makes the following Orders

1. The Respondent is to file its TDP 2 Form within 14 days from the date of this ruling.

2. The Matter to be set for further prehearing at a date to be fixed by the Panel.

Expenses

We make no order as to Panel Expenses.

Appeal

There is a right of appeal to the High Court within 14 days.

Issued to parties on the 7th day of March 2011

On behalf of the Panel

Wickly Faga
DEPUTY CHAIRMAN/TDP