Temarawa v Inanoi Cooperative Society - Judgment [2007] KIHC 16; Civil Appeal 18 of 2005 (2 March 2007)

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

High Court Civil Appeal 18 of 2005

Between:

TEEBAKI TEMARAWA
Appellant

And:

INANOI COOPERATIVE SOCIETY
Respondent

For the Appellant: Ms Berenike Iuta
For the Respondent: Mr Mantaia Kaongotao

Date of Hearing: 1 March 2007

JUDGMENT

The Single Magistrate set out the facts in this way:-

The petitioner (the present appellant) argued that he excused himself on the day of 20 July 2005 to the accountant of the Inanoi CS concerning his problems with his wife. His excuse was accepted and when he went out of the Inanoi CS and he was called upon by one of his working colleagues. These people namely Teiao and Teakin. He went to see Teiao outside the Inanoi CS and he drank one can of beer. The manager came to them maybe around 8am and he informed Plaintiff to have a break on that day but without any salaries. He then got involved drinking away until the afternoon maybe at 2pm. He stated that he was so drunk but he still recalled that he was frustrated with the words stated by Teiao and the clearing away of the bag of rubbish. He did not recall the calling of the policemen and he does not recall also his being into trouble with Teiao in front of the Inanoi CS. Then on the 23 July 05 and he received a letter (exhibit 1) that he was dismissed......

....the manager ..... kept going to the petitioner and reminded him that he leave the compound of the Inanoi CS but he did not want to listen. And at last, petitioner caused trouble in front of the Inanoi CS. This was confirmed by Petitioner when he stated "I created trouble during our time of drinking when it was afternoon for I frustrated with the words of Teiao.

Ms Iuta did not dispute those findings of fact.

The appellant took these proceedings in the magistrates’ court claiming wrongful dismissal. The claim failed.

The ground of appeal given in the Notice is "verdict is against the weight of evidence". Early in the hearing Ms Iuta acknowledged the correct ground was that the proper procedures for dismissal had not been followed. Rather than waste time amending the ground – or dismissing the appeal immediately – I allowed the hearing to continue.

The manager had suspended the appellant on the day ("he informed the plaintiff to have a break on that day but without any salaries"). The suspension was followed the next day by a letter from the Chairman of the Committee dismissing him. Ms Iuta argued that after her client was suspended the matter should have been referred to the Committee and the appellant heard before the Committee made a decision. She based on her argument on the respondents. Conditions of Service 2.7:-

Procedure for Termination and Dismissal

1. The Manger will notify the employee in writing that the termination of his/her appointment has been recommended to the Committee;
   

2(a) The employee will be given full reasons for such recommendation and advised that she/she wish to make representation to the Committee must do so within ten days (10) after being notified.

(b) The Committee may apply 5.13(4) in accordance with 2.6(2) and 5.16.

2. The Committee will make further enquiries if necessary and on the basis of the total information thus collected, shall decide whether or not the appointment of the employee should be terminated.
   

During submissions Mr Kaongotao reminded me that there had been an earlier case in the magistrates’ court in which the respondent was directed to follow the correct procedures which it did, confirming the appellant’s dismissal. Ms Iuta argued that by then it was too late for the respondent to correct the mistakes in procedure: by the time the Committee made its decision to dismiss it was a foregone conclusion.

I was referred to the Conditions of Service:-

5.13 Disciplinary Action

The following disciplinary actions for misconduct may be imposed: ........

4. Termination of employment without notice.
   

.....

5.16 Influence of Alcohol

Under no circumstances is an employee permitted to consume alcohol while on duty. If an employee is noticed to be under the influence of alcohol or consuming it during the normal hours of his/her duty he/she is liable to dismissal and to be dealt with in accordance with Condition 5.13(4).

Ms Iuta argued that the appellant was no longer on duty having been given the day off (albeit after asking for that for an untrue reason): consequently his drinking even in the circumstances as they were was not a breach of Condition 5.16.

Whether the way in which the appellant was dismissed was correct or incorrect, his conduct was disgraceful and justified dismissal. Ms Iuta admitted that her argument was a technical one, quite apart from the lack of merits of her client.

Strict compliance with the Conditions of Service is desirable but it must be remembered that the Conditions are being interpreted and followed by lay persons. Each case must be decided on its own merits. Provided that common sense is used, the spirit of the Conditions observed and an employee is treated fairly it would be ridiculous to enforce the Conditions to the last letter. I emphasize however that even though there may not have been strict compliance, the spirit of the Conditions must always be followed.

I am satisfied that although some mistakes of procedure were made there was substantial compliance and the appellant’s dismissal was amply justified. Whatever mistakes of procedure may have been made, the dismissal was not unjust.

The appeal is dismissed.

Dated the 2nd day of March 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice