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Dodo v Melanesian Security Solutions Ltd [2021] SBTDP 3; UDF 32 & 34 of 2020 (29 June 2021)

IN THE TRADE DISPUTES PANEL SOLOMON ISLANDS

CASE NO. UDF: 32 & 34/2020

BETWEEN:

JUSTIN DODO & BEN BITIAI

(COMPLAINANTS)

AND:

Melanesian Security Solutions Ltd

(RESPONDENT)

Panel: 1. Willy Vaiyu - Deputy Chairman
2. Eric Matangi - Employer Representative
3. Rose Bala’a - Employee Representative

Appearances: Moffet Berry Kepulu for the Complainant

Respondent – Barred

Date of Hearing: 21/04/2021
Date Finding Delivered: 29/06/2021

FINDING

1. There are two Complainants in this matter, Mr. Justin DODO and Mr. Ben BITIAI (referred to as Complainants) both were formerly employed by Melanesian Security Solution Ltd (referred to as the Respondent), a security firm operating in Honiara City.
   
2. By complaints lodged to the Panel (TDP Form 1) on 22/09/2020, the Complainants claimed they were made redundant by the Respondent on 30/04/2020 and 31/05/2020 respectively. The grounds for their complaints were the same and stated as follows:
   
   1. Panel to determine if they were made redundant.
   2. If so Panel to order redundancy payment.
      
3. The Respondent did not file notice of appearance despite being sent triplet copies of TDP Form 2 by TDP Secretary on 30/09/2020. A follow up letter by way of notice of appearance was again sent to the Respondent dated 22/02/2021 for the Respondent and the Complainants to appear before the Panel on the 17/03/2021 at 9:00am.

The Respondent was also advised to apply to the Panel for an extension of time to file TDP Form 2 under Rule 13(1) of the Trade Dispute Panel (Unfair Dismissal and Redundancy) Procedure Rules [Cap. 75] this was never done.

4. The Respondent has not been attending three conservative Panel sittings on 17/03/2021, 31/03/2021 and 14/04/2021 despite notices sent prior to these sittings. On the fourth nonappearance, 21/04/2021 the Complainants before the Panel applied for a bar for the Respondent not to participate in the arbitration proceeding under Rule 7(2) of the Trade Dispute Panel (Unfair Dismissal and Redundancy) Procedure Rules [Cap. 75] on grounds of nonattendance of three Panel sittings and was granted by the Panel.
   

Relevant facts

5. The Complainant, Mr. Dodo was employed by the Respondent as a Base Controller and Mr. Bitiai as a security officer. Their employments commenced on March 2014 and 07/06/2011 and ceased on the 30/04/2020 and31/05/2020 respectively.

The Respondent has indicated to have paid both Complainants annual leave and leave passenger payments. This was also confirmed by both Complainants, they now come to the Panel to seek awarding of Redundancy payment by the Respondent to them.

6. The Complainants in their submission alleged that they were terminated following the termination of a contract the Respondent was engaged in with the Solomon Islands National Provident Fund (SINPF) and submitted that under such circumstance they were entitled to be paid for being redundant. There was no evidence put before the Panel to substantiate this evidence. The Complainants also submitted that within this context their termination amounts to unfair dismissal.
   

Law

7. The question for the Panel is, were the Complainants made redundant by the Respondent so that Panel should consider awarding redundancy payment and invoke Unfair Dismissal Act [Cap 77] 1996, Section 8 and the Employment Act [Cap 72] 1996, Section 4(2)?
   

Employment Act [Cap 72] 1996, Section 4(1) and (2) states;

“Meaning of dismissal "because of redundancy"

4. (1) For the purposes of this Act, when an employee is dismissed his dismissal is to be taken to be because of redundancy if it is attributable wholly or mainly to-

(a) the fact that his employer has ceased, or intends to cease,

(i) to carry on the business for the purposes of which the employee was employed
by him; or

(ii) to carry on that business in the place where the employee was so employed; or

(b) the fact that the requirements of that business-

(i) for employees to carry out work of a particular kind; or

(ii) for employees to carry out work of a particular kind in the place where he was
so employed, have ceased or diminished or are expected to cease or diminish.

(2) Where an employee has been dismissed by his employer and the question whether he is entitled to a redundancy payment is referred to the Trade Disputes Panel or any court, then for the purposes of the reference, the employee shall be presumed to have been dismissed because of redundancy unless the contrary is proved.”

(italic, underlined & bold, Panel emphasis)

8. What is the contrary that the Complainants must prove to the Panel in this case? It is the presumption that the Complainants were made redundant, and the onus is on the Complainants to prove that presumption of redundancy. The Panel is of the view that it is the contention in the Complainants submissions that they were terminated because the contract the Respondent engaged them in, that is with SINPF, has been terminated, therefore their employment with the Respondent was longer required or ceased.
   
9. While the Complainants submissions were in line with Section 4 (1) (a) & (b) of the Employment Act cited above paragraph 7 it was submitted with no evidence and no supporting evidence to substantiate and or collaborate any evidence to prove the contrary that the Complainants were in fact at the material time were being employed by the Respondent in a contract with the SINPF and the contract has been terminated and that their service to that SINPF contract was no longer required. At this gesture, therefore, the presumption of redundancy was not proved by the Complainants.
   
10. Section 8 (1) & (3) of the Unfair Dismissal Act [Cap 77] 1996, states;
    

“Complaints about redundancy payments

8. (1) Any question arising under Part II of the Employment Act as to the right of any person to a redundancy payment, or as to the amount of the payment, shall be referred to the Trade Disputes Panel by a complaint under this section and determined by the panel.

(3) The hearing of a complaint under this section may be combined with the hearing of a complaint under section 6 above; and, in such a case, section 4(2) of the Employment Act (presumption of redundancy) does not apply.” (italic, underlined & bold, Panel emphasis).

11. Both the Complaints lodged to the Panel (TDP Form 1) on 22/09/2020, the Complainants claimed they were made redundant by the Respondent on 30/04/2020 and 31/05/2020 (dates of terminations) respectively. Any of the Complainants claims under Section 4, for unfair dismissal claims and Section 6 of the Unfair Dismissal Act are dismissed under Section 6 (3) of the Act,

“(3) A complaint under this section may not be made after the end of the period of three months beginning with the date of dismissal.”

Application by the Panel of Section 8 (3) for combining of hearing under Section 6 of the Unfair Dismissal Act and Section 4 (2) of the Employment Act is not possible in those circumstances.

Order

1. The presumption of redundancy was not proven by the Complainants therefore they were not made redundant by the Respondent,
2. No redundancy payment ordered,
3. Unfair dismissal claims dismissed,
4. No Panel expenses ordered.

Appeal

12. There is a right of appeal within 30 days by any aggrieved party to the High Court on question of law only pursuant to Section 13 of the Trade Disputes Act 1981 [Cap 75] as read with Section 11(1) of the Unfair Dismissal Act [Cap 77].
    

On behalf of the Panel,

Willy Vaiyu.
Deputy Chairman
Trade Dispute Panel