Totio v Public Utilities Board - judgment [2001] KIHC 53; Civil Case 33 of 1991 (1 June 2001)

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

High Court Civil Case 33 of 1991

Between:

KORU TOTIO
Plaintiff

And:

PUBLIC UTILITIES BOARD
Defendant

For the Plaintiff: Ms Emma Hibling
For the Defendant: Mr Kirata Komwenga

JUDGMENT

All this happened 10 years ago.

The plaintiff Koru Totio was acting senior meter reader for the Public Utilities Board at Bairiki. In November 1990 he was moved to Betio and reverted to his substantive position as a meter reader. On 30 November he wrote a letter to the General Manager complaining: the reply of 16/1/91 merely said that he lacked supervision and there had been "increasing customer complaints" but a letter the next day:-

It has been alleged that you were implicated in the embezzlement of cash in the amount of over $10,000.00 while you were in charge of the Bairiki Meter Section.

This was an extremely serious misconduct, and, therefore, I have been directed to inform you that, apart from other penalties that a Court of Law may decide on the case, you should expiate the offence by dismissal effective from Monday January 21, 1991.

You may make representation to the PSC if you are not happy with this penalty.

The plaintiff did appeal. This is a translation of his letter of 21 January 1991 to the Public Service Commission:-

I was a Meter Reader at PUB and I was sacked because I was suspected for the loss of money totalling $10,000.00

I am not happy at being dismissed from my current job as I honestly had nothing to do with it.

I say that the punishment which has been imposed on me is too heavy so I appeal to the PSC.

Please inform me when is the time of my appeal so that I can explain everything at that time.

The decision of the PSC, as set out in the letter of 11 February 1991 to the PUB:-

That the dismissal of Mr Akau Nareau, Meter Reader, L19-17 and Mr Koru Totio, Senior Meter Reader, L19-17 be REJECTED but that they both be on suspension on half pay with effect from 21 January 1991 until a proper and full information on their cases is received and finalised by the Commission.

Another reader, Akau Nareau, also had been accused and treated in the same way as the plaintiff. I do not know what has happened to him or, more significantly, whether Koru and Akau were accused of having embezzled equal amounts of money or anything else about the accusations against them. Akau did not give evidence.

The plaintiff was on half pay from 21 January 1991 until 2 May. In the meantime the PUB complained in a letter of 11/4/91 about the reversal of the dismissal and the suspension of the two men on half pay:-

Extract of PSC Minutes No. 3/91 regarding Messrs Akau Nareau and Koru Totio as conveyed per your letter of 11 February 1991 refers.

The rejection of management recommendations for the dismissal of the above named persons by the PSC and its decision to suspend them on half pay is conveying impliedly that it needs to see the court decision before it may consider the case. The PSC was perhaps perceiving the matter as a pure criminal issue awaiting the court decision before it may consider our recommendations.

The theft involved more than $10,000. the suspension on half pay as decided by the PSC is putting PUB funds in jeopardy once more. We believe it is proper if the theft may be considered as an issue of serious misconduct warranting dismissal rather than a criminal offence that need to await the court decision as PSC is formulating its decision.

With this in view it might need now to consider the matter, once again. No doubt the embezzlement of cash had been committed on different and numerous occasions by Koru and Akau. The complaints of those who have settled their electricity bills in Bairiki as their electricity were disconnected served to justify this claim. Grateful if PSC may consider it accordingly.

The relevant account of the embezzlement is enclosed for the information of the Commission.

What looks like an extract from the minutes of the PSC:-

DISCIPLINE

Public Utilities Board

THE COMMISSION ENDORSED the recommendation from PUB General Manager for the dismissal of Messrs Koru Totio, Senior Meter Reader, L19-17 and Akau Nareau, Meter Reader, L19-17 with effect from 2 May 1991.

The plaintiff said he knew nothing of any meeting of the Commission at which the decision to dismiss him was made. The first he knew of it, he said, was when he went to collect his salary (presumably the half pay) and he was told he had none. However I also have a copy of the letter from the PUB, dated 22/5/91:-

Dear Sir

Re: DISMISSAL

I am to inform you regrettably that PSC has endorsed the recommendation of your dismissal against the serious misconduct you were involved with. This will take effect from 2nd May, 1991.

By copy of this letter the Financial Controller is asked to cease payment of our salary accordingly.

Only two witnesses gave evidence, the plaintiff and Mr Bonteman Tooma, called by the defendant. Mr Tooma was in 1991 the Revenue Accountant at the PUB. He said the plaintiff was at the meeting of the PSC at which the plaintiff's case was reconsidered. I accept the plaintiff on this and find, on the balance of probability, that the plaintiff was not at that meeting.

The plaintiff had been employed by the PUB since 1983. His letter of appointment dated 13/5/83 contained this paragraph:

5. You will be subject to the provisions of National Conditions of Service and other terms and conditions of service and rulings as may be promulgated from time to time.
   

The point in contention between plaintiff and defendant is whether the defendant was entitled to sack the plaintiff as it did, without following the letter of the National Conditions of Service.

Mr Kirata Komwenga for the defendant argued that as serious misconduct had been committed the PUB was entitled to dismiss: the employer had a general power to dismiss. I reject Mr Komwenga's argument. The National Conditions of Service set out the procedures which should be followed. The plaintiff was subject to them. On the balance of probabilities they were not followed.

Ms Hibling for the plaintiff argued that the National Conditions of Service must be followed and they had not been. Ms Hibling conceded that any failure to follow procedures in the first purported dismissal of the plaintiff had been remedied when the PSC directed that he should be suspended on half pay. Ms Hibling argued that thereafter the proper procedures had not been followed. The plaintiff should have remained suspended on half pay until there had been a police investigation and the matter dealt with, either by deciding not to charge the plaintiff or until charges have been finally disposed of.

National Conditions of Service D32:-

Suspension from duty

D.32

(a) When an employee is accused of misconduct involving criminal proceedings, or otherwise, likely to result in his dismissal, the Senior Responsible Officer will:-

(i) consider whether it is in the interest of the organization to suspend the employee from duty.

(ii) if he decides to suspend the employee, inform him in writing of his suspension and the reason therefore and what proportion of his salary – being not less than 50% nor more than 75% of his gross salary – he will receive during the period of his suspension.

(b) The authority for suspension under paragraph (a) above rests with the Senior Responsible Officer.

[Ms Hibling has taken no point on who the Senior Responsible Officer was.]

This was the position reached after the direction of the PSC that the plaintiff should be suspended.

Pretty obviously, the intention of D32 is that the matter should then go to the Police. In an internal minute of the PUB dated 14 January 1991 reference to the police contemplated:-

Approval is hereby given that the services of Messrs Koru Totio and Akau Nareau be terminated as of Monday 21 January 1991 Also get the police to start investigations.

A letter was written to the Commissioner on 25/1/91:-

Some of our account staffs namely: Akau Nareau, Koru Totio ...........were alleged of embezzling the PUB revenue while working at the Bairiki Meter Section.

This should be taken to Court and therefore the case is now being forwarded to you for your appropriate actions. I attach the relevant accounts of the case which may form the basis of Police investigation.

The police in turn referred the matter to the Attorney General's office.

Nothing ever happened. Why? It seemed from the documents (I have all these documents by consent of both parties) that the file was lost at some time in the Attorney General's office.

The plaintiff did not sleep on his rights. The writ, accompanied by the Statement of Claim, was issued on 11 September 1991 by the People's Lawyer. An appearance was entered on 30 September (curiously two other appearances were entered in October) and a Defence filed on 3 October with a "Reply to Defence" filed on 18 October.

The last document on the court file, before 2000, is a letter from the People's Lawyer dated 29 September 1993:-

RE: REQUEST TO SET DOWN CASE FOR TRIAL HCC NO. 33/91 KORU v PUB

From my record, this matter was set down for trial on the 19th October 1992 and was then adjourned to the 2nd November 1992. It was further adjourned on the application of the Defendant's Counsel. I do not have on record any reason for such adjournment.

In the circumstances I wish to request if the matter can now be set down for trial.

The court file shows nothing more until the action was brought to life last year. On 29 June 2000 the Chief Registrar gave notice to the parties pursuant to O.62r.1 to shew cause why the action should not be struck out.

From time to time, I now know from the documents, the People's Lawyer tried to get some action from the Attorney General's office and the police. There are letters to the Attorney General's office on 30 October 1995 (and a reply promising action but there was none), 2 January 1997, 30 March 1997 and 2 June 1999.

The People's Lawyer also wrote to the Commissioner of Police on 24 January 1997: the reply of 21 February, in part:-

It appeared in our record (i.e. Register for Movement of case files) that the above case file ahs been sent to Attorney General's office on the 17th May, 1991 for further legal advise. The case file had never been returned.

At the hearing the parties agreed these dates:-

11 July 1998 DPP reached a decision not to prosecute the Plaintiff

11 July 1998 Prosecution file returned to Police with a decision not to prosecute

19 April 2000 Plaintiff's lawyer notified of decision not to prosecute.

PUB has not been formally notified of the decision not to prosecute the Plaintiff.

At some stage I wondered whether the plaintiff had been guilty of laches in not pushing the action. I think not. The writ had been issued promptly: the People's Lawyer had attempted from time to time to get some action: things often move slowly. Responsibility for the extraordinary delay seems to be primarily that of successive officers handling the matter in the Attorney General's office.

But what of the substance of the claim? Ten years have blurred the facts but I have concluded on the balance of probabilities that the plaintiff was unfairly treated. He was accused, with Akau, of what has been described as embezzlement. The spirit and probably (it is difficult to be certain after so long) the letter of the National Conditions of Service have not been followed: there seems never to have been any formal investigation or inquiry. Mr Tooma made a report and had taken a statement from the plaintiff. The plaintiff denied and has continued to deny wrongdoing. He appears not to have been given a proper opportunity to answer the allegations. Certainly before his first dismissal in January that was so. That omission was remedied on appeal to the PSC. The PSC then, the second time, accepted the recommendation of the PUB that he should be dismissed but without giving the plaintiff an opportunity to be heard in his defence. He should not have been dismissed without an opportunity to defend himself. His purported dismissal at the beginning of May 1991 is of no effect.

For reasons which are not clear, maybe only because the file was lost, he has never been charged with any criminal offence. Yet he lost his job.

What is to be done? I can see no reason why he should not have continued on half pay until either the defendant, the police or the Attorney General's office took some action. That remains the position.

Counsel asked that I should, for the time being, only decide liability and leave it to the parties either to agree damages or at least the figures for salary etc. on which I could base calculations to assess damages. I hope they will now do that.

There is however another issue: what is to happen to the plaintiff? Is he to be reinstated, will he resign, will charges now be brought? I pose those questions simply as examples of possible courses of action without making any judgment as to which, if any, should be followed. In some way this litigation must be brought to an end, preferably by agreement between the parties; otherwise by the court.

I shall hear counsel on what they have been able to agree.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE