Abeton v Attorney General iro Ministry of Line and Phoenix DevelopmentLinnix [2006] KIHC 143; 70-05 (15 August 2006)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 70 of 2005

Between:

TANANA ABETON
Plaintiff

And:

ATTORNEY GENERAL IN RESPECT OF
MINISTRY OF LINE & PHOENIX DEVELOPMENT
Defendant

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

Date of Hearing: 24 & 25 July 2006

JUDGMENT

Abeton Tokaia, the deceased husband of the plaintiff, was employed by the Ministry of Natural Resource Development (and in its successors in name) from 24 April 1981 until his death on 21 May 2003. The letter offering him employment:-

Further to our discussion of 22nd April 1981 regarding your employment with the Ministry of Natural Resource Development I am pleased to be able to advise you that we are able to offer you work in connection with the management and operation of the Solar Salt Project at Manutu Lagoon, Kiritimati.....

The salary level was at L13.

I was told that the deceased (or perhaps it was his widow) had a number of claims each of which has been met except for the claim the subject of these proceedings. From the Statement of Claim:-

5. While working the deceased was entitled to an approved Leave Grant commutation. His annual entitlement leave is 22 working days. The number of years not yet claimed is 13 being 1981-1994. The amount claimed is in the sum of $5411 being $6,764.02 less 20% tax of $1,352.80.
   
6. While working the deceased was also entitled to an approved salary increment. The total sum claimed for increment entitlement is $7,727.99 being for years 1981-2003.
   

Any claim not made within six years is statute barred, Limitation Act section 4(1)(a):-

The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say -

(a) actions founded on simple contract .......

Mr Tiba for the plaintiff argued that, the writ having been issued on
26th September 2005, only that part of the claim before
26th September 1999 was barred by section 4(1)(a).

Mr Tekanene to the contrary relied on the National Conditions of Service Section A6(b):-

No claim by an employee for allowance or any other awards in National Conditions will be entertained unless the claim is made within twelve months of the event which gives rise to the claim.

Mr Tekanene argued that the plaintiff could succeed only for the incremental payment due for 12 months after the claim was made.

Just when the claim was made cannot be fixed. The documentation is scanty. It seems that the deceased had made a claim at some time before his death and the claim has been maintained by his widow. Precisely when is not known. The only clue is the memorandum of the 19th September 2002 to Permanent Secretary for Line & Phoenix Group from Permanent Secretary, Office of the Beretitenti:-

Re: Grievances of Mr Abeton Tokaia

I am writing to further take up the grievances of Mr Abeton Tokaia, on behalf of te Beretitenti. As you are aware Mr Tokaia has taken up his concerns to the Beretitenti and that some of these have been addressed and hopefully will be resolved at your earliest convenience.

Mr Tiba and Mr Tekanene agreed to assume the claim had been some time in 2002 earlier than 19th September. They agreed, applying NCS E7(ii) that the deceased’s incremental date was 1st May 1981. [I notice what must be an error in NCS E7: both placita make the incremental date the first of the month of appointment.] His increment, not statute barred, ran from 1st May 2002 until death. .

The dispute is whether the plaintiff is entitled to the incremental payment for one year or for six years. Mr Tiba argued that the claim is founded on contract and his client was entitled to the increment for six years before her late husband made the claim in 2002.

Mr Tekanene to the contrary relied on NCS A6(b) which would limit her to one year. Mr Tiba replied by referring to NCS A10:-

In the event of conflict between National Conditions and any law, the law shall prevail.

The arguments raised the question of the relationship of the NCS to statute law. NCS A4(a):-

National Conditions of Service applies to employees of the Government, Statutory Bodies and Government Owned Companies of Kiribati and includes procedures for the conduct of business relating to those bodies, except where:- ...... (the exceptions are not relevant).

The deceased was, by the terms of the letter offering employment, an employee of the Government. The NCS applied to him.

The NCS are a convenient way of setting out the terms of employment of all those to whom they apply. They are imported into each individual contract of employment instead of being set out, again and again, in each contract.

What if there is a conflict between a statute and a provision of the NCS? Pursuant to NCS A10 the law prevails. That does not help the plaintiff. Pursuant to NCS A6(b), a term of his contract of employment, the claim may only be entertained "within 12 months ....". Pursuant to the Limitation Act section 4(1)(a) proceedings may be taken to enforce that claim for six years from the time it was made. The plaintiff had until 2008 to issue her writ. She is well in time.

However the terms of the contract of employment (including NCS A6(b)) are not affected by the time limit in the Act. The claim under the contract is restricted to 12 months (NCS A6(b)) but that claim may be brought at any time up to six years after being made.

There is no conflict between the terms of the deceased’s contract of employment and the NCS.

Two hundred dollars has been agreed as the increment for 12 months. The plaintiff claims for six years - $1,200. The defendant is prepared to concede the claim for one year - $200. The dispute between them has been over a thousand dollars.

The defendant’s argument succeeds.

There will be judgment for the plaintiff for $200.

Dated the 15th day of August 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice