THE TRADE DISPUTES PANEL
TDP
UDF No: 31/2020
DYSON PIANGA V ORIGIN ENERGY
Pre-hearing assessment – 5/7/2023
Opinion ruling – 12/07/2023
Panel Members
Willy Vaiyu – Deputy Chairman
Ian Rakafia – Employer Rep
Edward Bamu – Employee Rep

Primo Afeau – Respondent
Ronald Dive – Complainant 
1.	This is the Panels opinion on the pre-hearing assessment.
The application was made on behalf of the Respondent pursuant to Rule 10 of the TDP UD & Redundancy Procedure Rules seeking the Panels opinion on the likely or unlikely of the complainant to succeed in this proceeding.
2.	The Panel would like to thank both counsels for their written and oral submissions with the documents filed has assisted the Panel in coming up with their opinion.

3.	The Panel has noted that the complainant was complaining of unfair dismissal and the grounds of complaint were,

i.	No substantial reasons for dismissal,
ii.	No prior notice given,
iii.	No prior warnings and,
iv.	Not procedural.

4.	On the other hand the Respondent stated that the complainant was fairly dismissed on grounds of,

i.	Poor performance,
ii.	Insubordination and
iii.	Breach of code of conduct.

5.	The Panel notes that the complainant has been disciplined and was demoted from a higher post to a lower post and this type of discipline from employer is already a warning and cannot be subsided for a no warning and no notice in any work place, this was because of the complainant’s poor performance.

6.	The two pages of the letter from the General Manager to the complainant only indicate the arrogant behaviour of the complainant and the tone of the letter only confirms the insubordination of the complainant. The Panel notes in particular paragraph 8 of the letter, the General Manager states,

“ I cannot manage this business if you as our Terminal Manager continually disregard my advice and frankly your actions are disrespectful to me as the General Manager of this business” end of cote. 

7.	In his oral submission Counsel for the complaint argued that his client was requested to perform a duty that was not in his job descriptions and was not bound or obliged to perform the duty as it was the duty of another person. Another argument advanced by the counsel for the complainant was that in cases of insubordination there has to be a clear directive that must be given by person in authority that must be reasonable and that the order was disobeyed.

8.	The Panel is of the view that in any job descriptions it always concludes with this statement, “and to perform any other duties delegated from time to time by the superior”. It is also noted that the directive for the complainant to perform a duty alleging it was not his duty was direct from the General Manger, the person in authority and it was an order as the job was important to the company, it was clear, it was reasonable as the complainant was expert in the job requested. The complainant disobeyed the order and that was a clear insubordination.

9.	The General Manager has the upper authority to delegate, direct, order or call up any employee to do any other duty even if it is not in your job description or if you are on holiday.

10.	After going through all the documents and the submissions submitted the Panel is of the opinion that the complainant has a very slim chance and is unlikely to succeed and has no reasonable prospect of succeeding.

11.	If the complainant shall not withdraw his contention and persist up to the hearing the Panel shall make an order for costs against him at the hearing if the ruling at the hearing goes against him.
On behalf of the Panel,

Willy Vaiyu
Deputy Chairman
Trade Disputes Panel