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Maemania v Heritage Park Hotel [2018] SBTDP 2; UDF 22, 23, & 25 of 2015 (3 April 2018)

IN THE TRADE DISPUTES PANEL
SOLOMON ISLANDS CASE NO. UDF 22, 23 & 25/2015


BETWEEN:


Melody Maemania & Others
(COMPLAINANTS)


AND:


Heritage Park Hotel
(RESPONDENT)


Panel: 1. Willy Vaiyu – Deputy Chairman
2. Yolande Yates - Employer Representative
3. Philip Ika - Employee Representative


Appearances: Barry Kepulu for the Complainant

Andrew Radclyffe for the Respondent


Date of Hearing: 13/07/2017
Date Finding Delivered: 03/04/2018


FINDING


  1. There are 3 complainants in this matter, Melody Maemania, Maraya Taufa and Cathy Gwaro. The Panel will be dealing with each complainant one after the other as the circumstance surrounding their complaints are different but the nature of their complaints are similar.
  2. During the hearing the Panel heard the Complainants in the following order, Melody Maemania, Cathy Gwaro and Maraya Taufa.
  3. For the purpose of the Panel’s ruling in this matter the Panel will deal with the complainants in the following order, Maraya Taufa, Melody Maemania and then Cathy Gwaro.

MARAYA TAUFA


  1. By complaint lodged to the Panel (TDP Form 1) on 02/04/2015, the Complainant claimed she was unfairly dismissed by the Respondent on 07/03/2015. The grounds for her complaint were stated as follows:

1. No natural justice; and


2. Unfair termination.


  1. During the hearing the Panel was informed that the complainant was not available. Mr. Kepulu who appeared for the complainant on behalf of the Commissioner of Labour informed the Panel that she attended a briefing to prepare her for the hearing just yesterday 12/07/2017 and she is fully aware of the time and place for the full hearing this morning.
  2. There was no reason given or contact made by the complainant with Mr. Kapulu this morning before the hearing to explain her where about the Panel was told.

The Panel then decided to deal with Ms. Maemania and Ms. Gwaro first to give time for Ms. Taufa to appear but at the end of those two complainants’ hearings there was still no sign of Ms. Taufa.


  1. Mr. Radclyffe appearing for the Respondent then made an application under Rule 11(3) of Unfair Dismissal & Redundancy Procedure Rules for dismissal of Ms. Taufa’s case.
  2. The Panel under those circumstances granted the application for the dismissal of Ms. Taufa’s case.

MELODY MAEMANIA


  1. The complaint lodged TDP Form 1 to the Panel on 02/04/2015, the Complainant claimed she was unfairly dismissed by the Respondent on 06/03/2015. The grounds for her complaint were stated as follows:

1. No natural justice; and


2. Unfair dismissal.


  1. The Respondent filed notice of appearance on 20/04/2015on which the Respondent denied the claims stating the Complainant was in fact dismissed for abandonment of her service and stayed away from work without authorisation or no approval from 23rd February to 04th March 2015.

Relevant facts


  1. The Complainant was employed by the Respondent as a Seamstress/Tailor. Her employment began on 24/01/2011 (Exhibit 1) the date she also signed the contract of her employment.
  2. The evidence of the Complainant was that she was not given any warning letters before however she was terminated on the 05th March 2015 (Exhibit 2). The Respondents evidence was that there was no need for warning in her case and cited clause 13.5 of the Contract of Employment (Exhibit 1) as the reason for termination of the Complainant which states;

“In the event the Employee has been absent from work for seven consecutive working days without any notification to the Employer, this agreement shall automatically terminate on the expiry of the seventh day without notice of termination of employment.”


  1. Before the termination the Respondent, the Employer, approved a 15 working days annual leave for the Complainant commencing on the 4th February 2015 to the 24th February 2015 and should have resumed duty on the Wednesday 25th February 2015.
  2. The evidence of the Respondent the Panel heard that the Complainant was supposed to resume duty on the 23rd/02/2015. This is in fact was 14 working days from 4/02/2015 as opposed to the calculation of the Complainants 15 day’s annual leave. This however is not relevant to issue of absent from work as she was actually absent 7 days from her employment.
  3. The evidence of the Complainant the Panel heard that she has to wait for another 7 days before going to her home in Malaita because her annual leave and passage payment (cheque) was handed to her late afternoon Friday 6th February 2015 two days after the commencement of her annual leave.
  4. The Complainant was not able to cash the cheque until Tuesday 10th February 2015 this was due to the bank policy for waiting for further one working day for the cheque to be cleared the Panel heard.

She was then able travel by a boat to her home in Malaita on that day, 10/02/2015.


  1. The Complainant stated in her cross examination that she did not inform the employer that she was still at her home in Malaita and was not going to start work on the 25th February 2015 and that she did not ask for any advanced leave to cater for the days she will be absent from work.

Unfair Dismissal Guiding Principle


  1. 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.
  1. 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 act reasonably in treating that reason as sufficient in terminating the complainant?
  1. In answering these questions the Panel heard on the evidence that following the 7 working days absence from work the Respondent relied on clause 13.5 of the contract of employment (Exhibit 1) and automatically terminated the Complainants employment.
  2. The Panel heard that there was no opportunity given to the Complainant to give her story as to why she was 7 days absent from work after the laps of her annual leave.

The evidence of the Complainant was, out of her own initiative she tried to explain her situation to the Human Resource Manager but no one was listening to her and was not given an opportunity to be heard.


  1. She was instead handed a termination letter dated 05/03/2015 (Exhibit 2).

In this circumstance the Panel is of the view that Unfair Dismissal Act Cap 77 Section 2(1) which states;


(1) Subject to the following provisions, every employee has the right not to be unfairly dismissed by his employer.

The Employee has a right not to be unfairly dismissed, the dismissal must be fair, Section 4 of the Unfair Dismissal Act Cap 77, above cited.


Natural Justice


  1. 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).
  2. 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.
  3. The Panel have noted that there was no opportunity given to the Complainant to be heard that opportunity was denied.

The Principles of Natural justice is a must process for any two conflicting parties to follow and must be observed despite what cause 13.5 of the contract of employment said as in this case.


  1. 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 [1863] EngR 424; [1863] 14 CB (N.S) 180 appl applicant commenced building his house without giving notice to the Board as required by statute. He built up to the d flone evening the Bohe Board demolished the building without asking him to explain his omissioission 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 rs' case, EngliEnglish courtmed tmed to have decided inconsistently, the approach to determining requirement of opportuto be heard, but since 1964 in the case, of Ridge -v- Baldwin&[1963] UKHL 2; [1964] AC 40, confirming Coopers' c#160;the rthe rule requ implying the duty to afforafford opportunity to be heard has been firmly restored.” (Italic & unlined Panel ses)


  1. This quoted passage above from a High Court ruling is a case where an Act gives power to the Board to demolish for not following a requirement, the Board went ahead and demolished the building as the Act stated.

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.

In like manner an opportunity should have been given to the Complainant to explain why she has been absent from work.


  1. Given those evidence and in all the circumstances, the Panel finds that Rule of Natural Justice was never followed by the Respondent.

The Panel finds the Complainant's dismissal was unfair in those circumstances and therefore answers both questions in the negative.


CATHY GWARO


  1. The complaint lodged TDP Form 1 to the Panel on 02/04/2015, the Complainant claimed she was unfairly dismissed by the Respondent on 27/03/2015. The grounds for her complaint were stated as follows:

1. No natural justice; and


2. Unfair dismissal.


  1. The Respondent filed notice of appearance on 20/04/2015on which the Respondent denied the claims stating the Complainant was in fact dismissed for insubordination and carelessness.

Relevant facts


  1. The Complainant was employed by the Respondent as a House Keeping Attendant. Her employment began on 11/07/2011 (CG 1) the date she also signed the contract of her employment.
  2. The Complainant had received written warnings from the Respondent dated 24/02/2014 (Exhibit CG2) Second warning dated 15/04/2013 (Exhibit CG3) and the third dated 27/02/2015 (Exhibit CG4) which was also her termination letter.
  3. The evidence of the Respondent was that the Complainant have been coached but she decided not to make any improvement in doing her job.

The evidence of the Complainant the Panel heard that she did her job well but she was terminated because she was a member of Workers Union of Solomon Islands.

This evidence was supported by her witness Mr. Ben Ngelea who was working as an Assistant HRM in the Hotel at the time of her termination. The Panel believed this witness and is a credible witness.


  1. The Panel heard that the Complainant was never given a chance to explain about the circumstances giving rise to the Respondent issuing her with the warning letters.

The Panel heard the Complainant was not given the opportunity to be heard and to give her side of the issue surrounding her termination.

Her evidence was that when she approached the General Manager upon receiving her termination letter the response she got was “you are finished.”


  1. Section 4 of the Unfair Dismissal Act (Cap. 77) and the Rule of Natural Justice have been discussed by the Panel above which also applies in Ms. Gwaro’s case.

The Panel is of the view that on those evidence the dismissal of the Complaint was unfair in those circumstance.


Award


Melody Maemania


  1. In awarding compensation, the panel notes that the Complainant had worked for the Respondent for a period of more than 4 years. The Complainant has not secured any employment since termination on the 06/03/2015.

The Panel therefore awards;


  1. six months' salary as compensation to the Complainant for loss of employment,
  2. Repatriation costs.

The award is calculated as follows;


Six months’ salary;


Salary per fortnight - $1,051.71
2 pay days in a month
$1,051.71 x 2 x 6 months - $12,620.52


Repatriation Cost - $1,000.00


Total pecuniary awarded - $13,620.52


  1. The Panel therefore considers the sum of $13,620.52 as fair and reasonable in all the circumstances, taking account of the conduct of the employer and the Complainant both before and after the date of dismissal.

Cathy Gwaro


  1. In awarding compensation, the panel notes that the Complainant had worked for the Respondent for a period of more than 3 years. The Complainant has not secured any employment since termination on the 27/03/2015.

The Panel therefore awards;


  1. Six months’ salary as compensation to the complainant for loss of employment,
  2. 1 month in lieu of notice,
  3. Repatriation costs.

The award is calculated as follows;


Salary per fortnight - $896.00
2 pay days per month
$896 x 2 x 6 months - $10,752.00
1 month in lieu of notice - $1,792.00
Repatriation cost - $1,000.00


Total pecuniary awarded - $13,544.00


  1. The Panel therefore considers the sum of $13,544.00 as fair and reasonable in all the circumstances, taking account of the conduct of the employer and the Complainant both before and after the date of dismissal.

ORDER

  1. The Panel makes the following Orders;
    1. Ms. Maraya TAUFA’s case is dismissed pursuant to Rule 11(3) of Unfair Dismissal & Redundancy Procedure Rules.
    2. The Respondent to pay Ms. Melody MAEMANIA the sum of $13,620.52.
    3. The Respondent to pay Ms. Cathy GWARO the sum of $13,544.00.
    4. The Respondent to pay Panel expenses in the sum of $1,000.00 to the Ministry of Commerce, Industry Labour & Immigration pursuant to Section 11 of the Trade Disputes Act 1981.
    5. The Respondent to pay all the above payments within 14 days from the date of this Order.

Appeal


  1. There is a right of appeal within 30 days from the date of this Order by any aggrieved party to the High Court on question of law only pursuant to Section 7 (3) of the Unfair Dismissal Act.

On behalf of the Panel,


Willy Vaiyu.
Deputy Chairman
Trade Dispute Panel

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