Taake v Broadcasting and Publications Authority [2005] KIHC 50; 20-05 (12 August 2005)

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

High Court Civil Case No. 20 of 2005

Between:

TEBWATIA TAAKE
Plaintiff

And:

BROADCASTING & PUBLICATIONS AUTHORITY
Defendant

For the Plaintiff: Mr Katarake Tebweao
For the Defendant: Mr Birimaka Tekanene

Date of Hearing: 4 August 2005

JUDGMENT

The plaintiff, Tebwatia Taake, was employed by the defendant, BPA, as a driver. The parties entered into a contract of employment dated 1 March 2002. The relevant clause of the contract:-

10. Termination of Contract
    
    1. This agreement (may) be brought to an end by the employer or the employee if one of them give notice for a period of 1 week to end the agreement. This agreement can also come to an end if the doctor reports that the employee is unfit to carry out the work.
       
    2. The employee can be dismissed for doing any wrongful acts or go beyond the expected behaviours such as:
       
       1. Drunk while on duty
       2. Late to work
       3. Failure to report any accident caused to the vehicles by a driver who is on duty. Checked or examined the vehicle before using and report any damages to the Transport Officer.
       4. The CB must be on every time for any communication with BPA
       5. Comply with the speed limits
       6. Compliance with route of the bus which has been decided.
          

Any decision carried out for a. b. c. the Chairman of the Board must be notified about it immediately. The employee may complain to the Board.

During the hearing there was discussion about translation of the fourth word in subclause (b) “kabaneaki”. In the English translation which Mr Tekanene helpfully provided it appeared as “suspended”. I am satisfied the better translation is “dismissed”.

By reference to the original Kiribati version of the contract I am also satisfied that the words at the end of clause 10, “Any decision carried out for a. b. c. the Chairman of the Board must be notified about it immediately. The employee may complain to the Board” are part of subclause (b) only.

The defendant tendered letters and memoranda exchanged between it and the plaintiff shewing that there had been a number of complaints from time to time about the way in which the plaintiff was carrying out his duties and his apology and explanations for his failures. There is an internal memorandum dated 29 August 2003 headed “Re: Final Warning” addressed to the plaintiff. As that was more than 12 months before the termination of employment (20 October 2004), I regard it as having lost most of its force. However from all this correspondence I conclude that the plaintiff was not a generally satisfactory employee.

The plaintiff backing into a coconut palm and causing damage to a bus was the immediate cause of termination of employment:-

The Minute of the Management Meeting Held at the BPA board room on the 20/10/2004 ......... Agenda Disciplinary case and Tebwatia on Tarataake Angiraoi

Tebwatia’s case

Tebwatia summoned by management due to his involvement in causing badly damage to the BPA mini-bus. It was reported to management that Tebwatia on Friday night on the 15/10/04 negligently ram the back of the bus to a tree at Bikenibeu.

Management resolved to terminate Tebwatia’s employment with BPA on the following grounds

1. He cause monetary and economic loss to BPA
2. He has damage the door side of the same vehicle in the past
3. Has been reprimanded for not obeying superior instructions in the past.
4. Usually late to pick announcers in the night and sometimes the announcer has to hire her transport.
5. Very problem some and complaint too much but does not perform according to what is expected out of him.
   

Management decision

Employment with BPA be terminated as of today 20/10/04.

The 20 October 2004 was a Wednesday. The plaintiff said he was paid on Friday 22 October his wage for two weeks and then two weeks later another $40: no more.

From the records of the BPA produced by Mr Tion Tiaon Acting Finance Manager, I am satisfied that the plaintiff is not correct. The records shew that the next payday after 20 October was Friday 29 October when the plaintiff was paid his full wage $170.07 less deductions, net $79.30. On the next payday, 12 November, he was paid $51.02, net $47.20. I find that after termination of contract the plaintiff was paid at least his wages entitlement for one week. Mr Tiaon said it was his decision to pay the plaintiff 10 days’ wages. Whether he was paid as much as that I have not calculated but without calculation it looks clear he was paid at least seven days’ wages.

Mr Tebweao relied on clause 10(b) of the contract: the claim is for wrongful dismissal. Mr Tekanene relied on clause 10(a). Mr Tekanene is correct. The defendant terminated the employment immediately. Instead of giving the plaintiff notice for one week the defendant paid him at least a week’s wage in lieu of notice. To give the proper amount of wages in lieu of notice and terminate employment immediately is so common, indeed so universal a practice, that I regard the defendant as having acted in accordance with clause 10(a) of the contract. The defendant can, under such contract as it had with the plaintiff, always sack an employee and avoid possible action for wrongful dismissal by paying a week's wages. Clause 10(d) is then of no effect.

I should add that even if I had not found the defendant to have acted properly pursuant to clause 10(a) I would have found the defendant justified, by the record of the plaintiff’s conduct, in dismissing the plaintiff. There had been complaints against him from August 2002. None of the complaints comes within the examples in clause 10(b) but they are of the same kind: clause 10(b) covers the kinds of errors and omissions complained of against the plaintiff. The plaintiff was not wrongfully dismissed. His dismissal was justified under clause 10(b) as well as under clause 10(a).

The plaintiff called Mr Tamatau Baran who has a private accounting business in Betio. Mr Baran made a computation of the plaintiff’s damages based on the assumption that he had six working years left. [The plaintiff is 44]. Mr Baran reached a figure of $54,163. This included $5,000 for damages to reputation. Something for damages for reputation if the plaintiff had been unlawfully dismissed may have been justified: I make no decision on that. Mr Baran’s calculations have been a helpful guide. However there are so many imponderables, contingencies as we call them. The plaintiff may fall ill and not be able to work. He may die before he is 50. He may or may not get another job: if he does it may be a better or less well paid one. These are examples of contingencies to be taken into account in assessing damages. It is a case of “wielding the broad axe”. It is impossible to find a precise figure for damages. If damages had been payable I would have assessed them at $10,000.

As it is the plaintiff’s claim fails under clause 10 of the contract. There will be judgment for the defendant.

Dated the 12^th day of August 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice