Ioane v Chairman KPA Canteen [2007] KIHC 127; High Court Civil Case 87 of 2007 (9 August 2007)

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

High Court Civil Case 87 of 2007

BETWEEN:

KABUATEKAI IOANE
Plaintiff

AND:

CHAIRMAN FOR KPA CANTEEN
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Mr Mantaia Kaongotao

Date of Hearing: 2 August 2007

JUDGMENT

The plaintiff claims a declaration that her employer for six or seven years wrongfully dismissed her and she claims damages.

The defendant is named as "Chairman of KPA Canteen". In exhibit P6 ("Conditions of Employment") the employer is called "KPA Staff Club". It matters not. The plaintiff was employed by the KPA Canteen. The Chairman "is sued on behalf of the KPA Canteen": he is sued in a representative capacity.

The case had been on standby for the weeks beginning Monday
23rd July and Monday 30th July. The hearing was warned for the morning of Thursday 2nd August. Counsel were informed the previous afternoon of the hearing. Mr Kaongotao did not appear. After some time waiting for him, I decided to proceed: if the plaintiff were given judgment I would allow the defendant time within which to apply.

Immediately after the hearing I wrote to Mr Kaongotao. In the letter I said that, contrary to his letter to me of 26th July (that he was leaving South Tarawa for Beru on 30th July) he was still on South Tarawa, he had been warned personally that the case was to be heard that morning, he had given no reason for not appearing. I finished:-

This is most unsatisfactory. You had an obligation both to the Court and to your client.

The facts of the case appear in a series of letters exchanged between the parties. The exchange began with a letter to the plaintiff (who was in hospital at the time on maternity leave). It accused her of three things – exaggerating her overtime, wrongly fuelling her car at the expense of the defendant and dealing "inappropriately" with her kava money.

The letter concluded:-

So in regards to the allegations stated above, and the committee has decided or delivering its decision on 30/02/07 that you have to withdraw, or you have been dismissed. And since you are the accountant in our canteen and pursuant to the regulations of the handling of funds and you have been found that you have mishandled the funds.

Should you have any dissatisfaction regarding this letter, and we are surely prepared in accepting your clarifications concerning these allegations stated above.

We will give you 2 weeks beginning from the time in which you receive this letter.

The plaintiff replied defending herself, denying the allegations. Her letter concluded:-

To conclude the matter, again I would like to apologize and a humble request for your help in allowing me back to my job. I may have done wrong in the past, and will have learn from it and will try my very best, and as if I could be given me a second chance.

[This may look like an admission but it follows denials and explanations of the three complaints made against her.]

The plaintiff appeared before the Canteen Committee. She denied all the charges. She received a second letter from the Committee:

Greeting, this is the decision of the committee, which was held on 27th February 2007. Following our discussion with you, we understand that you agreed to all assertions raised against you.

In regards to the refuel of your car, you agreed to this accusation and the committee found you guilty of it.

In regards to your overtime, you also agreed and it’s been confirmed that you have made it in a wrong way, in which you always submitted to the Chairman for approval but not the Manager, which in fact the right way to do it.

Lastly, you were being seen so unreliable to your working time.

Therefore, this committee agrees since that you have already agreed to all allegations raised against you, and therefore this committee decided that you are now dismiss or terminated. It is a word of thanks from the committee for your service, which you have performed for the canteen.

The committee also have decided that your last pay is on the 16th March 2007.

Thank you and wish you all the best.

The plaintiff consulted her lawyer who wrote to the Chairman but it did no good. A final letter from the Chairman addressed to Mr Berina:-

This is my letter in reply to your letter headed (request for re-instatement for Kabuatekai Ioane) date 10th April 2007.

Having seen your letter mentioned above and the committee still firms with it decision in terminating his employee namely Kabuatekai due to the fact that Kabuatekai had accepted all allegations being raised against her.

The committee does not terminate Kabuatekai for lateness and absent from work and other allegations stated below;

1. Refuel of her car from depot station without official acknowledgement.
   
2. Increasing of her overtime hours without obtained official direction.
   

Therefore, the committee still firms in it believe that Kabuatekai is dismissed.

In oral evidence the plaintiff maintained her innocence on all the complaints brought against her in the letters and asserted she had maintained her innocence before the committee. The Committee, through the Chairman, continued to insist that she "had accepted all allegations being raised against her".

Having seen and heard the plaintiff I have no reason not to accept her as a truthful, reliable witness.

That being so the Committee dismissed her under a misapprehension. The misapprehension is that she had acknowledged her guilt on all matters when in fact she had denied guilt; in her own letter to the Committee, when she appeared before the Committee and in the letter written to the defendant by her lawyer.

The plaintiff has been wrongfully dismissed. She is entitled to a declaration that her dismissal was wrongful.

I have decided that question first. I should publish these reasons and have a copy sent to the defendant if Mr Kaongotao does not appear when warned, to hear publication. The defendant will have one month from that day in which to apply to the Court.

If no application be made I shall go on to assess damages.

Dated the 9th day of August 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice