Morningstar v Solar Energy Company [2005] KIHC 55; 26-05 (4 November 2005)

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

High Court Civil Case No. 26 of 2005

Between:

NABURA TEKIATA MORNINGSTAR
Plaintiff

And:

SOLAR ENERGY COMPANY
Defendant

For the Plaintiff: Mr Karotu Tiba
For the Defendant: Mr Birimaka Tekanene

Dates of Hearing: 1 & 2 November 2005

JUDGMENT

The plaintiff had worked for the defendant before but had been dismissed. He was re-employed to work on the European Union outer island solar power project. He worked from the second week in January last year until the end of October. He left. “I didn’t want to work. I was quite happy to leave”. He did not tell anyone he was going.

There had been nothing in writing relating to his employment. The day after he stopped working he signed a document headed “Temporary Contract” (Exhibit P1). He read it through before he signed it. He saw that he was described as a Project assistant, to be remunerated at L10-3, the level at which he had been paid all the year. P1 set out the terms and conditions under which he had been working. He thought, “it didn’t matter whether I read it or not or signed it or not”. He signed “for future reference”.

According to the General Manager of Solar Energy, Mr Terubentau Akura, Nabura had been an unsatisfactory employee. Solar Energy wanted to dispense with him. They were advised there should be a written a contract. The contract was drawn up and signed by Nabura and by Terubentau for Solar Energy. Clause 10 provides for termination on either side on four weeks’ notice. On November 31^st 2004 Terubentau wrote to Nabura informing him, “that effective from this date your appointment contract with SEC shall be terminated to safeguard the interest of the company”.

According to the Statement of Claim:-

11. During the period of his employment the Plaintiff had installed 845 number of SHS. The amount receivable for the installed number of SHS by calculation is 845 x $15 = $12675.00.
    
12. Having received his wages the Plaintiff had not received the difference of $6215 calculated thus 12675.00 – 6460 = 6215.
    

To sustain the claim, the plaintiff relied on a document headed “Remuneration policy for installation of household systems” (Exhibit P2). It provides for the “Operations Manager” to get a $15 bonus for each completed installation. The Statement of Claim alleges that 845 systems had been installed but Nabura could not substantiate that number.

He had once during the year approached Terubentau for payment in accordance with P2 as he was the Operations Manager. Terubentau had told him it was beyond his capacity. “After that I went on working at rate in contract”.

Terubentau, whose evidence on matters in conflict between them I prefer, said P2 was only a guideline. It was meant for the actual installers, those doing the work on outer islands if they achieved their targets. Nabura had spent most of his time on Tarawa. His duties had been administration and coordination. Nabura did make visits to outer islands. He had been recognised neither as Operations Manager nor as Assistant Manager, but Project assistant. Terubentau had never told Nabura he would get any benefit under P2. Nabura did make visits to outer islands, but as Nabura himself had acknowledged, before and after installations: Nabura did not take part in installing the systems. Terubentau explained that if Nabura had been satisfactory and had continued in employment he could have been appointed Operations Manger in the same way as another employee had been appointed Logistics Manager.

Nabura’s evidence was confusing. I had difficulty in understanding what he was claiming, how much pursuant to P2 he claimed he should have been paid. As I find that P2 is irrelevant, did not apply to Nabura, his calculations based on it are irrelevant too.

It was sensible of Solar Energy to have the Temporary Contract drawn up and signed. [It would have been even more sensible to have had it drawn before or soon after the beginning of Nabura’s employment.] The contract contains the terms and conditions under which Nabura had been working. He read the contract before signing it: he knew its terms and conditions. By signing the contract he signified his assent. He is bound by the terms and conditions in the contract. He is now estopped from denying those terms and conditions. He has acknowledged he was paid everything due to him under the contract, $6,460.00.

The plaintiff’s claim fails. There will be judgment for the defendant.

Dated the 4^th day of November 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice