Maio v Attorney General Iro Ministry of Labour and Human Resources Development [2012] KICA 7; Civil Appeal 8 of 2012 (15 August 2012)

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

Civil Appeal No. 8 of 2012

BETWEEN

WAUERI MAIO
APPELLANT

AND

ATTORNEY GENERAL IRO
MINISTRY OF LABOUR AND HUMAN
RESOURCES DEVELOPMENT
RESPONDENT

Before: Paterson JA
Williams JA
Barker JA

Counsel: Nancy Walker for appellant
Monoo Mweretaka for respondent

Date of Hearing: 9 August 2012
Date of Judgment: 15 August 2012

JUDGMENT OF THE COURT

INTRODUCTION

1. The appellant, Waueri Maio, appeals against the judgment of Sir John Muria CJ wherein he refused to issue an order for judicial review quashing the decision of the Fisheries Training Centre Management (FTC), made on 26 January 2010, dismissing the appellant. The appellant had commenced a training programme run by the FTC to train I-Kiribati men wishing to become seafarers on Japanese fishing vessels. The FTC is under the control of the Ministry of Labour and Human Resources Development ('the Ministry').
   
2. The Attorney-General, as representing the Ministry, was joined as a defendant in the judicial review proceedings because a purported appeal against the FTC's dismissal decision was apparently instigated by the Ministry, details of the Ministry's involvement were not revealed in the proceedings. The appellant wrote a letter to the FTC seeking to overturn the dismissal decision but this too was not produced at the hearing.
   

RELEVANT FACTS

3. The FTC programme for would-be sailors is very strict and disciplined. We were informed from the Bar that recruits, such as the appellant, have to agree to be bound by a Rule Book which sets out in great detail a code of conduct for trainees which regulates their lives during their training period. The Rule Book was revised last in January 2010 and it was in force at the relevant time. Section 9 of the Rule Book relating to discipline requires, inter alia, that 'Trainees are polite to all persons, whether inside or outside the school'. Trainees who break the disciplinary code are to be punished according to a punishment scale, shown in Part 14 of the Rule Book for various categories of offending. Forms of punishment specified in Section 9 are the imposition of overtime, stopped shore leave, group punishment, stoppage of pocket money and a recorded warning for any trainee who commits "a serious offence".
   
4. As noted above, Part 14 of the Rule Book's 'Trainees' Punishment Scale' grades various disciplinary infractions according to their seriousness and specifies the appropriate punishment(s) for each grade. The grades are Minor Offence, Slight Offence, Serious Offence and Very Serious Offence. The Part concludes with a paragraph under the heading "Non-Exhaustive":
   

This is not an exhaustive list of all possible offences that are punishable according to the above scales. Other offences not listed will be taken account of, and will be punished closest to the next similar offence accordingly. If it becomes necessary for the interest of the Trainees of FTC, other punishments can be given at the discretion of the Principal".

5. The "Very Serious Offence" category is defined thus:
   

Late from shore leave over 15 minutes	Missing from compound without permission
Late for watch-keeping duty over 15 minutes	Stealing
Drinking intoxicating drinks or any kind of Alcoholic beverages	Missing from bed
Left the gangway unattended	Cheating during any tests and exams
Fighting inside or outside of school	Selling School property for alcohol
Using false name	Possession of weapons of any kind
False intake interview declaration	Swearing to Instructors, Staffs, Supporting Staffs and Staffs visitors
Over Fence	Chewing intoxicating substance
Disobeying orders	Sleeping with a lady in the compound
Drinking Kava

6. On 26 January 2010, as part of his disciplinary training, the appellant was on duty watch between 0400-0600 hrs. During his watch, he wrote an entry in the Log Book, calling one of the staff a "chicken man". This person was a member of the kitchen staff whose real name was Moataake. The Entry on the Log Book read originally as follows:
   

Date	Names	Time
26/01/10	3924	0541	Wake up call to chicken-man for his preparation.

7. At 0600 hours the appellant signed off at the end of his watch and handed over the Log Book to the next trainee on duty watch. The trainee or the next shift saw the entry made by the appellant and brought it to his attention. The appellant then crossed out the word 'chicken-man' and wrote the cook's real name, 'Moataake' and then left.
   
8. The appellant was later that morning called from the classroom by the Deputy Principal of the school. The Deputy Principal told him that his action in making an entry in the Log Book calling one of the staff a 'chicken-man' was wrong and unacceptable. The FTC Management Team comprising the Principal, Deputy Principal, Fishing Instructor and Deck Instructor, then summoned the appellant into the Boardroom.
   
9. What happened next as admitted by Counsel for the Respondents is as follows:
   

When the appellant was summoned to the Boardroom, he was told that he was dismissed for "swearing". He pleaded with the Management Team, making submissions against his dismissal. He was sent outside to wait but, when called back. he was told that the decision of dismissal stood.

10. On 28 January 2010, the appellant wrote to the Principal of the FTC asking for reconsideration of his dismissal. The FTC met again in April 2012. This so called appeal was heard by the same persons who had originally dismissed him. Perhaps unsurprisingly, his "appeal" was rejected. The appellant subsequently, with the leave of the High Court, brought judicial review proceedings against the FTC and the Ministry seeking to quash the decision to dismiss him.
    
11. Neither counsel was able to refer us to any statutory or contractual basis for an appeal to the Ministry against an FTC decision. There is no reference to any appeal or rehearing in the Rule Book. Nor was the appellant's letter to the FTC or any correspondence relating to his so-called appeal produced in evidence as, in our view, it should have been.
    
12. An affidavit of documents from the Respondent was sworn by counsel appearing for the Respondent both in this Court and the Court below. Counsel should not make affidavits in proceedings in which they appear before the Court. The affidavit of documents in this case should have been made by senior and responsible persons in both the FTC and the Ministry. What is equally concerning is that none of the correspondence between the FTC and the Ministry relating to the appellant was listed and that privilege was claimed for these documents as a whole. Whilst privilege can be claimed for documents in which legal advice is sought or given, all documents, including the privileged ones, must be listed in an affidavit of documents. We find it hard to accept that all of any correspondence between the FTC and the Ministry would have been privileged. Listing of all documents is required so that any claim for privilege can be tested. In fairness, we note that the appellant's affidavit of documents has been sworn by his then Counsel (not Miss Walker). So it seems that the practice of counsel swearing affidavits of documents may not be unusual in Kiribati. However, the practice is not to be encouraged. The enduring rule of practice is that counsel should not give evidence in cases in which they appear before the Court.
    
13. There was no cross-examination of either the appellant or the Principal of the FTC, Mr Natake, whose affidavit confirms that the 'rehearing' was before the same members of the FTC as had considered the appellant's dismissal initially. He deposed that he and his colleagues "unfortunately concluded again that the Applicant's action is one of a serious offence and that they were very furious by (sic) the disrespectful behaviour against any staff or members of the Centre and that the previous decision should stand". Such a statement as being 'furious' hardly indicates a measured and fair approach to the appellant's application for leniency.
    
14. Mr Natake further deposed:
    

"8. Though 'chicken man' is not clear and not written in the rules, Management had considered 'Non-Exhaustive' at the last part of Clause 14.4 and for the interest of the training, trainee and staff Management confirmed the previous decision to dismiss the plaintiff.

9. It must be clear that trainees must respect staff at all time as they will also respect their superiors when employed on vessels.

10. The kind of attitude done by the applicant is not acceptable at FTC and onboard foreign vessels as it will severely damage the reputation of FTC and of our fishermen".

15. The first decision of 26 January 2010 was recorded in the log book of the FTC thus:
    

"Dismissal of 3924 - He called Moatake (one of the Staff) Chicken man, and the Management agreed that he had been swearing to a staff member which is a very serious offence". It seems from the affidavit of Mr Natake (paragraph 8 above) that at the 'appeal' the FTC may have realised that the appellant's conduct may not have constituted 'swearing' and that the FTC then decided, quite impermissibly, subjectively to create an offence.

16. The appellant had deposed relevantly as follows:
    

"8. The word 'chicken man' that I wrote in the Log Book is not my whole intention to write it in that way to mock Moataake. Moataake in English translated chicken who is the cooker and I wrote the words thinking that I wrote 'kitchen man' in the Log Book.

9. However after finding out about this mistake by the next shift whom I did the handling over to, I crossed out the word 'chicken man' with a line and instead put the word Moataake only (I don't know his surname and that's the reason why I previously put chicken man thinking I put kitchen man in the first place). I crossed the word chicken man in that way with the line because that is what they taught us when we have something wrong in the Log Book; to cross it with a line not to make the Log Book looks messy. I did not want to get punished by that minimal mistake so I crossed it in that way. Had I know earlier that the words that I wrote would be escalated into a very serious mistake or offence, I would have crossed it out in a way that it would be not apparent or readable and that if punished, the punishment may be less severe.

10. I longed to go back to the school. I'm unemployed since then. My wife is unemployed too and we have 3 children, the eldest of them is about 8 years and the youngest is about 1 plus. My family depended upon me.

11. My family and I lived in Korobu at my wife's place. I went fishing to get food for the family, cutting toddy for a drink. We lived a subsistence lifestyle.

12. My children went to school, the Primary School and the Kindergarten School and I supported them financially on my own at my own expense.

13. My wife is pregnant and we are expecting a child soon.

14. I really want to finish school at the FTC.

15. Since I was dismissed I continued studying notes that were taught to the 38th and 39th Course or Intake. I do this on my own by reading the notes that I have got from my classmates.

17. I really want to go back to the school and continue the training".
    
18. There was no evidence before the Court on the question of whether referring to someone as a "chicken man" was regarded as offensive in Kiribati culture.
    

HIGH COURT DECISION

19. The Chief Justice held that the appellant's use of the words "chicken-man" was rude and offensive. It came within Rule 14.4 because it was 'swearing' which means to use words that are vulgar, rude, offensive and calculated to annoy a person. Such a prohibition against 'swearing' is a necessary rule of discipline in this particular setting. An offence of a 'very serious' nature was an offence of "strict liability" which attracted the only penalty provided in the Rule Book i.e. dismissal. Although the Chief Justice did not see and hear the appellant in evidence (since no cross-examination had been sought), he concluded that the appellant intended to swear at the staff member – i.e. the cook. He said that the Rule was made for the valid reason of instilling good conduct, respect and discipline on the trainees and that the appellant should have known about it.
    
20. Since dismissal was the only punishment laid down for committing a Rule 14.4 offence, there was "substantive fairness" in the respondent's action in dismissing the appellant. The Chief Justice then found that there was no procedural unfairness at the time of the dismissal because the appellant had been given an opportunity – albeit brief – to persuade the FTC to reconsider its decision. However, he found that procedural unfairness had been shown when the body hearing the 'appeal' was comprised of the same persons who had made the initial decision to dismiss. He went on to hold that the result would have been the same with a differently-composed appeal body and, in the exercise of his discretion, he declined to issue certiorari, making no order as to costs.
    

SUBMISSIONS

21. Counsel for the appellant submitted essentially that 'chicken-man' – written in English by one whose first language was not English and in the absence of any evidence of any particular cultural connotation of insult - could not constitute 'swearing'.
    
22. Because of the 'strict liability' nature of the offence, counsel submitted that proof of intention to insult by swearing needed to be proved. The words could have been innocuous since 'chicken' could be regarded as a slang term in English for someone not prepared to take a risk, for example.
    
23. Counsel referred also to the appellant's personal circumstances and the draconian effect of dismissal on a man with a young family in an economy where there was high unemployment. Counsel submitted that the Respondent could not legitimately just create another "offence" justifying dismissal which was not included in the list of prescribed conduct, much of which involved little serious criminality or even liability under what can be called disorderly conduct offences.
    
24. Counsel for the respondent sought to uphold the judgment along the lines of the Chief Justice's reasoning. He endeavoured to give evidence from the Bar of the understanding in Kiribati society of the term 'chicken man'.
    
25. Counsel submitted that the appellant had been afforded procedural fairness and that the decision appealed from was "reasonable and just".
    

DISCUSSION

26. We are unable to agree with the learned Chief Justice that the appellant's reference to the cook as 'chicken-man' constituted "swearing" under Rule 14.4 for the following reasons:
    
    • (a) The words 'chicken-man' are ambiguous. They could for example be an attempt at heavy-handed humour to refer to he cook's occupation. It does not follow, even if the appellant had deliberately written those words in the log book that he was necessarily intending to insult the cook in the same way as if he had used unpleasant language of the sort normally associated with the term 'swearing'.
      
    • (b) In the English language, 'swearing' is usually understood as verbally addressing another person using language involving derogatory terms –often of a sexual nature – swearing is often euphemistically described as using 'four-letter words'. "Swearing" does not necessarily equate with rude or insulting language. It can do so, but one can insult and not use any swear words in the insult.
      
27. We offer these reasons because the alleged 'swearing' was in the English language. There was no evidence that the relevant words in that language or in the Kiribati language, were particularly insulting. Even if it had been, it may have just been insulting but not constituting swearing. Most languages have 'swear words' which usually include coarse sexual references: references to particular animals can also be swearing in some languages but there was no evidence that reference to a chicken in the Kiribati language had the same pejorative meaning that references to, say, dogs or pigs have in some languages.
    
28. Because of the oppressive consequences to a trainee of the commission of a 'very serious' offence under Rule 14.4, the Court must interpret the Rule very strictly. It is not tenable for the Rules to contain a provision for the FTC to manufacture further offences. Trainees are entitled to know what conduct is prescribed. They might be expected to know that serious criminal conduct would attract disciplinary attention but the incidents listed hardly come into that category.
    
29. If the appellant's conduct were regarded as undermining the discipline of the FTC (as it could have been), we should have thought that a lesser penalty such as those prescribed for 'minor', 'slight' or 'serious' offences (as defined) would have been more appropriate. In disciplined communities, such as armed forces, swearing is by no means unknown and minor "offences" receive minor penalties such as forfeiture of pay or leave entitlement or extra duties.
    
30. Therefore, we disagree with the Chief Justice that the conduct of the appellant came the ambit of Rule 14.4. It therefore follows that the decision of the FTC must be quashed and the appeal allowed.
    
31. We also have reservations about the finding that the appellant received procedural fairness at his initial hearing. It seems that the FTC had made up its mind to dismiss the appellant. Although it had given the appellant a brief chance of pleading his case without the opportunity of taking advice from anyone, their minds may well have been made up and they were just 'going through the motions'. The reference to the FTC being furious does nothing to the perception of a fair hearing.
    
32. We agree with the Chief Justice that the purported appeal (which was really a re-hearing) was fairly meaningless when the appellant found his case being conducted yet again by those who had already found against him.
    
33. We disagree also with the Chief Justice that an 'appeal' body –differently constituted – would have come to the same view of the appellant's conduct. It is not for the Court to substitute its view on the decision maker. Any independent appeal/rehearing body may well have taken the same view as this Court about the meaning of swearing.
    
34. We have difficulty in seeing that the Ministry was a proper candidate for judicial review since we were not advised of any authority – statutory or contractual – for the holding of an appeal. However, the Chief Justice was right to regard the appeal as an extension of the dismissal process.
    

RESULT

35. The appeal is allowed. The decision of the FTC dismissing the appellant from the hearing programme is quashed.
    
36. The appellant is entitled to costs in this Court and in the Court below together with disbursements. All are to be fixed by the Registrar.
    

Paterson JA

Williams JA

Barker JA