Kiribati Ports Authority v Teitiroro [2019] KICA 3; Civil Appeal 2 of 2018 (21 August 2019)

IN THE KIRIBATI COURT OF APPEAL ] Civil Appeal No. 2 of 2018
CIVIL JURISDICTION ]
HELD AT BETIO ]
REPUBLIC OF KIRIBATI ]

BETWEEN KIRIBATI PORTS AUTHORITY APPELLANT

AND CAPTAIN TIIKAWA TEITIRORO RESPONDENT

Before: Blanchard JA

Handley JA

Heath JA

Counsel: Elsie Karakaua for appellant

Banuera Berina for respondent

Date of Hearing: 16 August 2019
Date of Judgment: 21 August 2019

JUDGMENT OF THE COURT

The appeal

[1] The Kiribati Ports Authority (the Authority) appeals against an award of damages, made by the High Court at Kiribati, in favour of Captain
Tiikawa Teitiroro. The Captain’s claim was made under an employment agreement with the Authority. The sum in issue is $4,189.23.

Background
[2] Captain Teitiroro was employed by the Authority in December 2001. By signing the foot of a letter from the Authority to him of 17 December 2001, the Captain accepted the Authority’s offer to engage him as a “Pilot Boat Master (Grade 5-3)” on terms specified in general conditions of employment provided to him at that time.

[3] The 17 December 2001 letter made it clear that those terms could change if updated conditions were promulgated in the future. That did happen. The 2001 terms were superseded by general “Conditions of Service for Employees” (the Conditions) that came into force on 1 October 2006.

[4] In 2007, the pilot boat sank. That left no vessel for the Captain to pilot. Nevertheless, the Authority continued to employ him. In a letter dated
27 July 2009, he was described by a representative of the Authority as holding the position of a “permanent Mooring Supervisor”. There is no evidence to suggest he fulfilled any different role from the time the pilot boat sank in August 2007 to the date of his retirement, in October 2011.

[5] When Captain Teitiroro retired, a dispute arose about his entitlements under the Conditions. By writ of summons issued in the High Court on
4 April 2012, he sought a sum of $4,189.23, together with interest and costs. His claim turns on whether clause E.21 of the Conditions applies and entitles Captain Teitiroro to a retirement allowance that includes a sum calculated by reference to 15 per cent of his “basic salary allowance”. If he were so entitled, there is no dispute as to quantum.

The High Court hearing

[6] The Captain’s claim was determined by Commissioner Eberi, in a judgment given on 20 February 2018. The Commissioner considered that the only issue for her to determine was whether Captain Teitiroro was entitled to the 15 per cent allowance. The Authority’s position was that, after the sinking of the pilot boat, the Captain lost his entitlement to that allowance.

[7] The Commissioner found that the 15 per cent allowance was payable, by reference to clause E.21. While she referred also to the earlier 2001 terms, to similar effect, in this Court counsel were agreed that the Conditions is the controlling document. On that basis the Commissioner entered judgment for the amount claimed, $4,189.23 together with interest and costs.

Extension of time to appeal

[8] The appeal was filed late. The Authority seeks an extension of time to appeal against the Commissioner’s decision. The application is not opposed. We grant the application.

Analysis

[9] Clause E 21 of the Conditions deals with allowances to be paid in lieu of overtime. In full, it provides:

E.21 Allowance in Lieu of Overtime

(a) Employees in the Operations Department who are not eligible for overtime but are required regularly to work extra hours may be paid an allowance of 15 percent of basic salary.

(b) An office employee who is not eligible for overtime but is required to work extra hours, the hourly rate for the actual hours worked is applicable.

(c) Allowances in (a) & (b) are not applicable to Division Managers.

(original emphasis)

[10] If Captain Teitiroro’s work status after the pilot vessel sank was such as to bring him within clause E.21(a) of the Conditions, he is entitled to the 15 percent allowance on retirement.

[11] Captain Teitiroro gave evidence that, as a pilot boat master, he was paid a gross salary of $640 per fortnight, made up of a basic salary plus an allowance of 15 percent in lieu of overtime. After the pilot vessel sank in 2007, the Authority continued to pay the allowance.

[12] By letter dated 12 December 2009, the Authority changed its position. The Human Resource Officer advised Captain Teitiroro that an error had been made and that he was not entitled to receive the allowance after the pilot boat sank. Relying on clause A.5 of the Conditions, the Authority asserted that it was entitled not only to cease making such payments in the future, but also to require repayment of that part of the Captain’s remuneration from the time the pilot boat sank.

[13] Clause A.5 of the Conditions is designed to protect the Authority in the event of errors in the administration of the Conditions. It provides:

A.5 Errors in Administration

In the day-to-day administration of these Conditions, errors may occur. No employee will be allowed to lose or gain as a result of such errors nor may such errors be regarded as precedent for granting similar treatment to any other employees. When an error results in an overpayment, the authority may recover the overpayment by deduction from an employee’s salary. When an error results in an underpayment, the underpayment shall be made good to the employee.

[14] On appeal, Ms Karakaua, for the Authority, contended that the Commissioner had erred by not treating clause A.5 as determinative. The Authority’s counterclaim for recovery of moneys paid was not pursued. To the
extent it may have been before the High Court for determination there was no cross-appeal. Accordingly, we focus on the question of entitlement by reference only to clauses E.21 and A.5 of the Conditions claim.

[15] There was ample evidence before the Commissioner to establish that, from the time the pilot vessel sank on 2 August 2007, Captain Teitiroro undertook work as a “permanent Mooring Supervisor” or outside work akin to that.

[16] Clause E.21 of the Conditions envisages a binary approach to determination of whether a particular employee is entitled to a 15 percent allowance in lieu of overtime. The clause distinguishes between operational workers and those engaged in office employment.

[17] Whether or not the term “Operations Department” in clause E.21(a) was intended to have some employer-specific meaning, it is clear that Captain Teitiroro could not be characterised as an employee who worked in the Authority’s office. In that situation, the Captain’s work status fell within clause E.21(a), and resulted in an entitlement to the 15 percent allowance.

[18] Clause A.5 has no relevance. It refers only to circumstances in which an error has been made by the Authority. It could only have applied in this case if the Authority had made an error in paying Captain Teitiroro in the period between August 2007 and his retirement. No error was made because Captain Teitiroro was entitled to receive payment under clause E.21.

Result

[19] For those reasons, the appeal is dismissed.

[20] Given the amount involved ($4,189.23) and the additional cost to which the Captain has been put, we consider costs should be awarded in his favour in a sum higher than that which we would ordinarily award. Costs are awarded in favour of Captain Teitiroro in the sum of $1,000.

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Blanchard JA

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Handley JA

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Heath JA