Attorney-General v Tenano [2002] KICA 11; Civil Appeal 08 of 2001 (12 August 2002)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No. 8 of 2001

BETWEEN:

ATTORNEY-GENERAL IN RESPECT OF
THE MINISTRY OF WORKS AND ENERGY
Appellant

AND:

ITINTEANG TENANO
Respondent

Coram: Casey JA
Hardie Boys JA
Tompkins JA

Counsel: David James for Appellant
Banuera Berina for Respondent

Date of hearing: 9 August 2002
Date of judgment: 12 August 2002

JUDGMENT OF THE COURT

[1] The Attorney-General seeks leave to appeal out of time against two judgments of the Chief Justice. By the first, delivered on 2 May 2001, the Attorney-General was held liable to the respondent in damages; by the second, delivered on 15 June 2001, damages were assessed at $37,161.71, and judgment was entered for that sum.

[2] After considering the circumstances that brought about the delay in bringing the appeal, and with Mr Berina not offering opposition, we granted leave as sought.

[3] The proceedings were commenced on 8 April 1992. The statement of claim alleged that on 17 July 1987 the plaintiff was wrongfully dismissed from his employment as Superintendent of the Mobil Depot within the Ministry of Works and Energy, his dismissal being "under the pretext of making him redundant" and in breach of contractual provisions relating to redundancy.

[4] On 13 August 1992 a statement of defence and counterclaim was filed, asserting among other things that in August 1984 the respondent was suspended for misconduct, in that he misused a large sum of money belonging to Mobil Agency, and then on 17 July 1987, following the incorporation of Mobil Agency into Kiribati Oil Company, he was lawfully dismissed pursuant to section 65 of the Employment Ordinance. The other allegations in the counterclaim are not relevant for present purposes.

[5] Having been 5 years in gestation, the case languished for a further 8 years, to be revitalized only when the Chief Registrar gave the respondent notice to show cause why it should not be struck out.

[6] When it finally came before the Chief Justice, no evidence was called, counsel instead handing up an agreed Statement of Facts as follows:

Statement of Agreed Facts

1. Sometime in August 1984, the Plaintiff who was employed by the Defendant as Superintendent of Mobil Agency was suspended (sic) of committing a criminal offence, i.e. misusing a large sum of money belonging to Mobil Agency. He was thereafter suspended on half pay until he was made redundant on 17 July 1987.
   
2. The Plaintiff took proceedings in 1992 for wrongful dismissal. The plaintiff says the redundancy was just a pretext to dismiss him.
   
3. The Defendant by its defence at paragraphs 2, 8, 9,10,11,12, 14, 15 and 16 say the Plaintiff was dismissed and that the Defendant was justified in dismissing him because of the gross misconduct i.e. misusing a large sum of money.
   
4. In 1992 criminal charges were laid against the Plaintiff relating to what he allegedly did in 1984 with Mobil Agency money. In 1993 on 11 February 1993 the charges were dismissed.
   
5. The issue as one sees from the pleadings is whether or not the plaintiff had been wrongfully dismissed.
   

[7] The relevance of paragraph 4 is that under the National Conditions of Service, D30, D31 and D34, where criminal proceedings are instituted against an employee, no disciplinary action may be taken against him, on any grounds connected with the charge until the proceedings have been finally disposed of. The employee may however be suspended. An employee who has been suspended and who is then acquitted must be reinstated on full salary with effect from the date of his suspension.

[8] At the hearing before the Chief Justice, the respondent invoked these provisions, but sought only his full pay up to the date of his acquittal, and it was on this basis that the Judge assessed the damages.

[9] In giving judgment on liability, the Chief Justice saw a paradox in the arguments presented by counsel on both sides, in that each party had changed his ground. The Chief Justice put it this way:

In the Statement of Claim redundancy is pleaded and in the Defence misconduct. Yet now the plaintiff abandoned his complaint about being dismissed for redundancy and argues he was wrongfully dismissed for misconduct. The defendant on the other hand seeks to justify the dismissal on grounds of redundancy.

He continued:

In view of the Agreed Facts resolution of the issues is best achieved by leaving the pleadings and going to what appears to be the real issue - whether or not the plaintiff was wrongfully dismissed for misconduct.

[10] On that basis, the Chief Justice, noting in passing that there was no evidence of any justification for dismissal on grounds of redundancy, held that the dismissal was in breach of the provisions of the National Conditions of Service referred to above. "The plaintiff," he said, "should not have been punished until the criminal proceedings came to an end: even more, on acquittal he should have been reinstated on full salary. The plaintiff was wrongfully dismissed."

[11] In the notice of appeal, the Attorney-General contended that the Chief Justice was wrong to depart from the pleadings and go to what appeared the real issue, because that led him to determine the case on a cause of action (dismissal for misconduct) that had not been pleaded, and that could not have been introduced by amendment, had that been sought, because by then it had become statute-barred. At the hearing in this Court however, Mr James did not pursue that point, accepting that a claim of wrongful dismissal for misconduct was indeed open to the respondent on the pleadings. For the respondent's case is that misconduct was the real reason for his dismissal, the redundancy being used simply as a pretext. On the other hand, the appellant's case is that this was a genuine redundancy.

[12] Determination of the issues required evidence, and none was called. Counsel no doubt hoped to expedite the hearing, but what purported to be an agreed statement of facts was little more than a summary of the pleadings, with the addition in the fourth paragraph of information about the criminal charges. It provided the Chief justice with virtually no material upon which to base a decision. We can fully appreciate his desire to cut through what were unsatisfactory pleadings, and to deal with the real issue. But in doing so, and perhaps because of that fourth paragraph, he did not appreciate that the issue was not quite as straightforward as it seemed.

[13] As stated above, the criminal proceedings were not instituted until 1992, eight years after the respondent had been suspended, and five years after his employment had been terminated. Therefore, the provisions of D30, D31 and D34 were not applicable. It was only in 1992 that the respondent could have invoked them, but by then his employment had been terminated.

[14] Mr Berina submitted that for the purpose of D30 criminal proceedings were instituted as soon as the matter was put into the hands of the Police, but so to construe the provision would be contrary to its plain and ordinary meaning.

[15] The suspension in 1984 was no doubt pursuant to D32, which provides for that sanction "when an employee is accused of misconduct involving criminal proceedings, or otherwise, likely to result in his dismissal". But the termination of employment 3 years later was Justifiable only if misconduct were proved, or if there were genuine redundancy. Neither alternative was explored before the Chief justice, who was led to believe that the case revolved around D30.

RESULT

In these circumstances, the two judgments of the Chief Justice must be set aside. As the case cannot be determined without evidence, we order a new trial. In the circumstances, the parties should bear their own costs.

Casey JA
Hardie Boys JA
Tompkins JA