Teitikai v Kiribati Protestant Church [2004] KIHC 202; Civil Case 43 of 2002 (6 August 2004)

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

High Court Civil Case 43 of 2002

Between:

URIAM TEITIKAI
Plaintiff

And:

REV BAITEKE NABETARI
TRUSTEE FOR KIRIBATI PROTESTANT CHURCH
Defendant

For the Plaintiff: Ms Jennifer Troup
For the Defendant: Mr Aomoro Amten

Date of Hearing: 3 August 2004

JUDGMENT

The plaintiff is a minister of the Kiribati Protestant Church but at present under suspension. He has sued the Church (or rather he has sued the Rev Baiteke Nabetari as trustee for the Church) claiming damages for wrongful dismissal from the position of Youth Evangelism and Sunday School Coordinator. He alleges he was not given an opportunity to be heard in answer to complaints against him. The defendant in paragraph 7 of the Defence, “states that the plaintiff was given a full and proper opportunity to make representations against his dismissal.”

The defendant has counterclaimed for rent of a house which the plaintiff refused to leave and in which he and his family continued to live for some time after his dismissal.

There is little, if any, dispute about the facts. The plaintiff began as YESS Coordinator on 2 February 2000. He had a four year term. Financial irregularities appeared. An audit was done in February 2001. The auditor recommended changes in procedure: the changes were made.

In the early part of 2002 all members of the plaintiff’s staff were away. He took control of financial matters, receiving money etc. In April 2002 there was a second audit. The plaintiff saw the audit report on 4 June. The next day the Church, by letter, dismissed him. The letter of dismissal referred to rule 23 of the KPC Rules and Regulations and Conditions of Service.

I have been given a copy of the KPC Conditions of Service. It is in Kiribati. Both parties acknowledge being bound by the Conditions of Service. I also have two translations of rule 23(1) under which the Church purported to act in dismissing the plaintiff:-

The first translation:

23 Discipline conditions for employees

(1) An employee with a bad reputation will be dealt with in accordance with Section 20(1) and (2). He or she will be disciplined or terminated from work. The decision shall be recommended by the subcommittee to which he or she belongs to, to the Executive Council for endorsement.

The second translation:

23 Decisions in respect of a worker who does not perform adequately

(1) A worker who does not behave well or work well, will be suspended in accordance with 20(1) and (2) or will be dismissed. This will be done by the Committee after it receives all the information and hears from the accused.

Differences between the two translations are obvious. It is not possible to construe the Rule precisely. Be that as it may, upon receiving the letter of dismissal, the plaintiff went to a lawyer. The lawyer wrote to the defendant giving an explanation of the matters of complaint in the auditor’s report. The lawyer asked that his client have an opportunity to defend himself. The Church was reminded that the Conditions of Service provided for a person to be heard before a decision on employment be made. The Church agreed and gave a time when the plaintiff should appear before the Council.

On 16 August the plaintiff with a letter dated 15 August and rebutting the complaints against him, appeared before the Council. It seemed that his explanations were accepted but then two new allegations were made. The plaintiff knew nothing of them until he was at the meeting. They took him by surprise. He was given no opportunity to prepare a defence to them.

The defendant wrote on 5 September to the plaintiff:

Your appeal to the Council was dealt with at the Council meeting held 13-15 August 2002. The Council’s decision remains unchanged, as you may have suspected, since you could not answer the allegations made against you with the exception of those in the auditor’s report ...... It was revealed by your responses that it was your signature next to the following transactions:

1. The contribution of the Tabuaeran YESS’s contribution of $2,242 which you receipted as only $1,910.45;
   
2. The Government’s MESD aid of $2,870 paid on cheque No. 013425 and which you receipted for only $1,870 in cash and not in cheque.
   

Returning to the Council’s decision, it is as follows:

1. Pursuant to section 23(2) of the Conditions of Service you are to be suspended from your role as Minister for a period of 5 years.
   
2. Since the review of your case has been completed in accordance with your request, you are to vacate your house.
   

The writ in this action was issued on 18 October 2002.

I have avoided canvassing the facts upon which the complaints were based. Those which the plaintiff answered apparently to the satisfaction of the Council are not now relevant. The two complaints raised for the first time on 16 August are the subject of criminal proceedings. It is not desirable to go into the facts for that reason and also because, as Ms Troup stressed, her client’s claim is based on his being dismissed without the opportunity to be heard: nothing to do with the substance of the complaint.

I make only one comment. In the letter of 5th September it said that the plaintiff signed the receipts. In evidence from Mr Renata Nooa, the Secretary for Finance for the KPC, it came out that the signature on the receipts is that of Betero, a subordinate of the plaintiff’s, the Assistant Coordinator. Betero was not called: I was told he is not available.

Before the Council made a decision should the plaintiff have been given a proper opportunity to be heard in answer to the two new complaints?

I have set out rule 23(1) of the Conditions of Service. Also relevant is rule 11(4). Again I have been given two translations.

The first translation:

11. Retirement
    

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(4) The Executive Council has the authority to remove employees whose performance are not good, or his conduct are not decent.

The second translation:

11. Leave and no reinstatement
    
    • (4) A worker will be dismissed if it is believed that he has behaved improperly or that his work is unsatisfactory. Before a final decision is made, the worker should be give time to answer allegations made against him before the Executive Council. However he will not be given this opportunity if he is alleged to have committed a very serious crime.
      

No point was taken by counsel over the differences between the two translations and in argument we referred to the second, the plaintiff’s version. It provides that “the worker should be given time to answer allegations made against him before the Executive Council”. The first version is silent on that. The second version also includes reference to “a very serious crime”. A very serious crime is not defined in the Conditions of Service. It is an inexact expression. Counsel did not argue the point whether the complaints against the plaintiff could amount to a very serious crime.

The second version merely echoes the rules of natural justice: a person has a right to be heard in his own defence. I said something about the rules of natural justice in Toawea Biribo vs The Attorney General in respect of the Public Utilities Board (HCCC 27/2000).

Irrespective of what the Conditions of Service say natural justice, fairness, required that, before coming to a conclusion, the defendant give the plaintiff the opportunity to prepare an answer to the two fresh complaints against him made for the first time at the meeting on 16 August and to hear him in his defence. The defendant did not. Whether the defendant acted contrary to rules 11 and 23, it certainly acted contrary to the rules of natural justice. It was not fair to the plaintiff for the Council to make a decision without hearing him again after he had had time to prepare his defence.

The plaintiff succeeds on liability.

At the end of the hearing I told counsel that if I were in favour of the plaintiff on liability I would adjourn consideration of damages on the claim and liability and damages on the counter claim until the criminal proceedings are finished. The outcome of those proceedings may or may not turn out to be relevant in this civil action. I shall give counsel an opportunity to argue that in due course.

Dated the 6th day of August 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice