Biribo v Attorney-General [2001] KIHC 38; Civil Case 27 of 2000 (8 May 2001)

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

High Court Civil Case 27 of 2000

Between:

TOAWEA BIRIBO
Plaintiff

And:

THE ATTORNEY GENERAL IN RESPECT OF
PUBLIC UTILITIES BOARD
Defendant

For the Plaintiff: Mr Neil Allen
For the Defendant: Ms Pole Tebao

Date of Hearing: 8 May 2001

JUDGMENT

I wrote Reasons for judgment in this action and published them on 18 December 2000. Those reasons should be read in conjunction with these. I ended by saying, "As for the claim in paragraph 2 for unpaid wages, I shall hear the parties further if they are not able to reach agreement."

The parties have not been able to reach agreement and Mr Allen asked that the hearing be called on again. The matter argued on Tuesday was not the quantum of unpaid wages but whether the plaintiff still has his job.

In the course of the discussion between counsel and me we came on a point which had not been argued at the earlier hearing – that the plaintiff's appeal against dismissal should have been to the Public Service Commission and not to the Public Utilities Board.

In the letter of 16 July 1999 purporting to dismiss him, appears this sentence:-

However you are reminded of your right to appeal to the Board if you feel you have not been given fair hearing.

In his letter of appointment dated 29/4/91:-

You will be subjected to the provision of National Condition of Service and other terms and conditions of service as may be promulgated from time to time.

The heading of section D in the National Conditions of Service is "Disciplinary Proceedings" and the subheading "Proceedings against an Employee in Salary Level 14 or below". Counsel agreed that the plaintiff was at Level 19.

D35 (in relevant part):-

(a) When a Senior Responsible Officer consider it necessary to start disciplinary proceedings, other than a reprimand, against an employee he shall forward to the employee a summary of the charges made against him and advise him of the proposed punishment. These particulars will also be copied to the Under Secretary, (PSD).

In the same letter the employee will be advised that should he wish to make representations to his Senior Responsible Officer he must do so in writing within ten days of receiving the letter......

(c) The employee must be informed of his right of appeal to the Public Service Commission.

Undoubtedly dismissal is a "disciplinary procedure".

Ms Tebao argued that the PUB had the power to dismiss the plaintiff. She relied on paragraph 3 of Schedule 2 of the Public Utilities Ordinance (Amendment) Order 1997:-

The termination of appointment, dismissal and disciplinary control of the staff and the Chief Executive Officer shall be vested in the Board.

So the Board does have the power – but subject to following the procedure in the National Conditions of Service. The procedure was not followed: the plaintiff was told of a right of appeal to "the Board" not to the PSC: the plaintiff was not given a summary of charges and advised of the proposed punishment: he was not advised about making representations in writing.

The correct procedure was not followed. The plaintiff was not given the correct information about appeal.

I can only conclude that the plaintiff has not been properly dismissed: that his purported dismissal was a nullity. That means he is still an employee of the PUB.

Mr Allen had another point (he had mentioned it in passing at the earlier hearing but did not argue it) – that the Chief Executive Officer had been present when the PUB considered the plaintiff's dismissal: this is contrary to paragraph 4 of Schedule 2:-

(a) In the course of a Board meeting when representations from an employee of the Board are received in relation to the dismissal or disciplinary control of that employee, the Board shall, unless the employee concerned otherwise consents, exclude the Chief Executive Officer from that part of the meeting during which the representations are being received.

(b) In the course of a Board meeting where the Board is deliberating on a matter involving the dismissal or disciplinary control of an employee, the Chief Executive Officer shall be excluded from that part of the meeting during which such deliberations are taking place.

Mr Tokia Greig acknowledged that he had been present at meetings of the Board which considered the plaintiff's case. As the hearing by the PUB was of no effect anyway there is no need for me to consider whether Mr Greig's presence also invalidated proceedings.

Having come to this conclusion what is to be done? Obviously the second order I made was made per incuriam, by mistake. The PUB is not the body to "conduct a fresh hearing". I asked Ms Tebao whether she had anything to say about my recalling that order. She said she did not. I recall the order.

The first order need not be recalled but is beside the point.

The order I should have made was to quash the purported dismissal on 19 July 1999. I now make it.

This means that the plaintiff is still, at law, employed by the PUB: he has not been dismissed.

Before I reserved my decision I suggested to counsel that they should again attempt to do what they have not yet been able to do, settle. If they are still not able to settle, it follows that the plaintiff is entitled to his back wages to the present and continuing and the defendant is entitled to the plaintiff's services until his services terminate in accordance with the law.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE