JUDGEMENT-
27/09/07
1. The
Respondents were served with the application on 9 August 2005 but
failed to enter an appearance to defend. When the matter came before
the court for ex
parte trial,
we directed that notice of set down be served on the Respondents
before the thai could proceed. On the postponed trial date, proof of
service of the set down was duly filed.
There was still no
appearance on behalf of the Respondents, and the trial proceeded in
their absence on an unopposed basis.
2. The
Applicant testified that he was employed as a security guard by Mrs.
Annie Chang, the owner of Mountain View Cottage, in January 2000. He
was placed under the supervision of Mr. Paul Wang, a friend of Mrs.
Chang. Mountain View Cottage operated as a bed-&-breakfast
establishment.
3. The
Applicant testified that on 16th
September 2004 he was
instructed to assist the gardener in cleaning the yard in
preparation for the arrival of guests. Notwithstanding that this
work was not part of his job description and he was expected to
perform it during his off time without compensation, he assisted the
gardener. As a result, he only had two hours to sleep before he
started his night shift as a guard.
4. The
Applicant was tired and he fell asleep whilst on duty as a guard.
Paul Wang woke him up, shouting at him, and the Applicant
apologized.
5. The following day was
the Applicant's day off. When he returned to work on Saturday 18th
September 2004, he found
another security guard employed in his place. The guard relayed a
message to him that his services were no longer required, and gave
him E300.00 from the employer as payment of wages for days worked.
6. The
Applicant engaged a labour consultant, who accompanied him to meet
with his employer. They spoke to Paul Wang, who confirmed that the
Applicant had been dismissed.
7. Prior
to his dismissal, the Applicant had a clean disciplinary record.
8. The
Applicant reported a dispute to the Conciliation, Mediation and
Arbitration Commission. The Respondents failed to honour an
invitation to attend conciliation, and a certificate of unresolved
dispute was issued.
9. Sleeping on duty is
not per
se a
ground for dismissal. Such conduct in a security guard constitutes
unacceptable work performance, but poor work performance can only be
a fair reason for dismissal where the employee had first been given
counseling and opportunity to improve his performance and thereafter
a final written warning.
10. No disciplinary
hearing was convened and the Applicant was afforded no chance to
explain the reasons why he failed to stay awake. He was not given
written notice of dismissal, nor the opportunity to appeal against
his dismissal.
11. Having regard to the
Applicant's unchallenged testimony, the court finds that:
11.1. The Applicant was
employed by Mrs. A. Chang in January 2000.
11.2. The Applicant was
an employee to whom section 35 of the Employment 1980 applies;
11.3. The termination of
the Applicant's services was substantively and procedurally unfair
and unreasonable.
12. The Applicant is
entitled to payment of his statutory terminal benefits, his
outstanding leave pay, and compensation for unfair dismissal.
13. The Applicant says
he was entitled to 15 days statutory leave per annum. He did not
take leave throughout his employment. He was due 55 days leave.
14. The Applicant was
unemployed for 2 years before he found another job. The manner of
his dismissal was rude and humiliating. Nevertheless he is a young
man and he has recovered from his setback at the hands of the
Respondent. We consider that an award of 6 months will adequately
compensate hirri for his unfair dismissal.
15. Judgement is entered
against the Respondent Mrs. A. Chang for payment to the applicant as
follows:
Notice Pay 800.00
Additional Notice Pay
369.24
Severance allowance
923.10
Leave pay 2153.85
Compensation 4800.00.
E9046.16
16. The Respondent Mrs.
A. Chang will pay the Applicant's costs.
The members agree.
PETER R. DUNSEITH
PRESIDENT OF THE
INDUSTRIAL COURT
