Tabuanaba v Kiribati Supply Company Ltd [2009] KICA 17; Civil Appeal 15 of 2009 (26 August 2009)

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

Civil Appeal No 15 of 2009

BETWEEN:

TEITIRUA TABUANABA
APPELLANT

AND:

KIRIBATI SUPPLY COMPANY LTD
RESPONDENT

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Mantaia Kaongatoa for appellant
Botika Maitinnara for respondent

Date of Hearing: 23 August 2009
Date of Judgment: 26 August 2009

JUDGMENT OF THE COURT

Introduction

[1] The appellant was employed by the respondent as a cleaner. She was dismissed by a letter from the General Manager of the respondent. She brought an action claiming damages for wrongful dismissal. When the action came before the Chief Justice on 14 May 2009, he held in an oral judgment delivered that day that her dismissal was wrongful. He assessed the damages to which she was entitled at $250. She has appealed against the assessment of damages.

Sequence of events

[2] She was appointed a cleaner by letter dated 3 May 2007. She was to be on probation for 6 months. We assume that after six months, she became a normal employee. No rate of pay is specified.

[3] Clause 6 of the terms and conditions of engagement provides:

6. TERMINATION Termination of an employee may be either from the employer or from the employee himself/herself. . . The employer may terminate the employee if the employer is satisfied that the employee cannot perform his/her functions as prescribed in his/her job description despite being given proper training . . ."

6.1 An employee who is terminated by the employer must be given one months notice or alternatively s/he may be given an amount equal to the basic wage s/he would have earned in such a period in lieu of notice

[4] On 4 June 2008 the general manager of the respondent wrote to the appellant advising that for reasons set out in the letter she was suspended until further notice and advising her of her right of appeal. She exercised that right. She set out her reply in a long letter dated 10 June 2008

[5] On 22 June she appeared before the board of the respondent. After hearing her in the absence of the general manager, the board rebuked her and reminded her that ". . . a repetition could lead to her dismissal and endorsed her suspension." The general manager was dissatisfied with that conclusion. The outcome was that he was authorised to obtain legal advice and if there were grounds for termination, to do so.

[6] On 24 June 2008 the human resource officer on behalf of the general manager wrote to the appellant advising her that her appeal against her suspension was dismissed, her services were terminated, and she would be paid a month’s salary in lieu of notice. This was done.

[7] The evidence in the High Court was, according to the transcript, limited to liability and the production of the relevant documents. There was no evidence on damages. In particular there was no evidence of her earnings. We were advised from the bar that they amounted to about $100 a week.

The High Court judgment

In his judgment the Chief Justice said:

Two points have been canvassed. First, the plaintiff complains that her suspension by the General Manager was not justified. The Court should not consider that complaint: on the face of the grounds in the Memo (P2) there was ample justification for dismissal and it was a matter for management, not the Court. The complaint of the plaintiff is without legal substance.

The second point is the difficult one. The minute (Exhibit P4) is clear: her suspension (not her dismissal) was endorsed. She left the meeting after hearing that. Then she received the letter dismissing her.

The Board having conveyed one decision to her could not go back on it, change its mind and convey another decision. The plaintiff succeeds on liability.

I may add that if it had not been for having told her the suspension was endorsed, that her appeal had failed, the Board would have been justified in dismissing her. That being so, although there must be judgment for the plaintiff the damages to which she is entitled are modest. I assess them at $250.00.

Submissions on the appeal

[9] The essence of the submissions for the appellant was that the Chief Justice erred in not allowing further evidence to be given on damages after the decision on liability. Counsel gave no indication of what that evidence could be. We note that the statement of claim damages of $50,688, which we understand is the amount of her wages from the date of her dismissal until the date of her expected retirement. In the circumstances of this employment, that could not possibly be the correct measure of damages.

[10] It was submitted on behalf of the respondent that if there is to be separate hearings on liability and damages, that is always made clear at the commencement of the hearing. This was not done. She went on to submit that there were no grounds for upsetting the Chief Justice’s assessment.

Conclusion

[11] Having regard to the terms of her employment and in particular clause 6.1, it may well be that the termination of the respondent’s employment fell within those provisions with the result that the termination of her employment was lawful. All that she was told was that her appeal against her suspension was "endorsed", that is that it did not succeed.

[12] But even if it were not lawful, we are unable to find that the Chief Justice’s assessment of damages is so unreasonable as to justify setting it aside. She was only employed for about twelve months. In the absence of any evidence to establish otherwise, an award of $250 in addition to the month’s salary she had already received cannot be described as unreasonable.

Result

The appeal is dismissed. The respondent is entitled to costs to be agreed or taxed.

Hardie Boys JA
Tompkins JA
Fisher JA