Tenano v Attorney-General [2001] KIHC 35; Civil Case 10 of 1992 (30 April 2001)

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

High Court Civil Case 10 of 1992

Between:

ITINTEANG TENANO
Plaintiff

And:

THE ATTORNEY GENERAL
ON BEHALF OF THE SECRETARY
MINISTRY OF WORKS & ENERGY
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Mr Kirata Komwenga

Date of Hearing: 30 April 2001

JUDGMENT

This is another very old case. The writ is stamped "received – 8 Apr 1992" was apparently issued on 18 May 1992: the cause of action arose in the mid 1980's. The last note on the court file is in March 1993. Thereafter nothing until June last year when the Chief Registrar gave notice to the plaintiff to shew cause why the action should not be struck out.

Mr Banuera Berina for the plaintiff and Mr Kirata Komwenga for the defendant handed up an agreed Statement of Facts at the beginning of the hearing:

Statement of Agreed Facts

1. Sometime in August 1984, the Plaintiff who was employed by the Defendant as Superintendent of Mobil Agency was suspended 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.
   

Each gentleman made submissions.

The crux of the plaintiff's case is that he was dismissed before the criminal proceedings against him were completed. This is in breach of National Conditions of Service, D.30 and D.31:-

Criminal Proceedings

D.30 If criminal proceedings are instituted against an employee, no disciplinary action shall be taken against the employee on any grounds connected with the criminal charge until the conclusion of the criminal proceedings and judgment on any appeal has been given. But the employee may be suspended in accordance with National Conditions D.32 and D.33.

Acquittal on Criminal Charge

D.31 An employee acquitted of a criminal charge shall not be punished on any charge on which he has been acquitted.

Furthermore, D.34:-

D.34 An employee who has been suspended and who is acquitted of criminal or disciplinary charges will be reinstated on full salary with effect from the date of his suspension.

Mr Berina said that all his client seeks is that his pay be made up to full pay until the date of the acquittal.

Mr Komwenga to the contrary argued that the plaintiff was dismissed for redundancy: he did not have the benefit of the agreement with the BKATM Union on redundancy (NCS Appendix C.1) because he was not a member of the Union. His dismissal on the grounds of redundancy was proper at common law.

Mr Berina's rebuttal to Mr Komwenga was that the defendant did not plead redundancy: the Defence alleges that the plaintiff was rightly dismissed for misconduct. The defendant has not applied to amend the pleadings and cannot argue redundancy now.

The paradox of counsel's arguments is that each party has changed his ground. 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.

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.

The defendant dismissed the plaintiff on 17 July 1987: the defendant was acquitted of the criminal charges in February 1993. There is no evidence of any justification for dismissal on grounds of redundancy. The dismissal was in breach of the provisions of the NCS which I have set out. The plaintiff should not have been punished until the criminal proceedings come to an end: even more, on acquittal he should have been reinstated on full salary.

The plaintiff was wrongfully dismissed.

Counsel asked that I decide liability but not assess damages. Once liability was decided counsel were hopeful that they could agree damages.

Accordingly I publish these Reasons but do not at this stage make any order.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE