Bakineti v Attorney General iro SDGIK, MISA - Judgment [2007] KIHC 71; Civil Case 16 of 2007 (21 March 2007)

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

High Court Civil Case 16 of 2007

Between:

RITIA KAMAUTI BAKINETI
Plaintiff

And:

ATTORNEY GENERAL IN RESPECT OF
SDGIK, MISA
Defendant

For the Applicant: Mr Mantaia Kaongotao
For the Respondent: Mr David Lambourne, Solicitor General

Date of Hearing: 19 March 2007

JUDGMENT

By contract dated 27th March 2006 the plaintiff, a lady well qualified academically and with wide relevant experience, was appointed "Project Manager under the supervision of the National Project Director" of the Strengthening Decentralised Governance Project within the Ministry of Internal and Social Affairs. The terms of employment were set out in the contract. The relevant clauses:-

National Conditions of Services (sic)

4. The employee will not be subject to the terms and conditions of the Government’s National Conditions of Service as are in force from time to time......
   

Termination of Agreement by the Government

11. Subject to the provisions of clauses 12 and 13, the Government may terminate this Agreement –
    
    • (a) by giving the employee not less than two months’ notice in writing of its intention to terminate this Agreement; or
      
    • (b) at any time by paying the employee a sum equivalent to two months’ salary in lieu of notice.
      

Termination of Agreement by the employee

12. (a) The employee may terminate this agreement –

(i) after the expiration of two months’ service, by giving the Government not less than two months’ notice in writing of her intention to terminate this Agreement; or

(ii) at any time by paying the Government a sum equivalent to two months’ salary and allowances package in lieu of notice.

(b) If the employee terminates this Agreement otherwise than in accordance with this clause she shall be liable to pay to the Government as liquidated damages a sum equivalent to two months’ salary and allowances package.

Termination of Agreement on Medical Grounds

13. (a) Where a Medical Officer certifies that the employee is medically, mentally and physically unfit to the extent that she is unlikely within a reasonable time to be able to resume her duties, the Government may terminate this Agreement by giving the employee not less than one month’s notice in writing of its intention to terminate this agreement.
    
    • (b) This clause shall not apply where the appointee’s unfitness is substantially due to the employee’s own misconduct, such as is covered by the provisions of clause 15.
      

Dismissal

14 (a) Where the Government considers that the employee –

(i) has committed a serious breach of any of the provisions of this Agreement; or

(ii) is guilty of serious and willful misconduct,

Government, through the Outer Islands Project Coordinating Committee ("OIPCC") shall determine that enquiries be conducted into such alleged breaches of misconduct.

(b) Where, after such inquiry, the OIPCC is satisfied that the employee has committed the said breaches or is guilty of the said misconduct, Government may terminate this Agreement forthwith.

(c) For the avoidance of doubts any inquiry conducted under this clause shall comply with the principles of natural justice.

It has often been said that in a contract between parties the parties themselves agree on their arrangements: they make their own law to govern their respective rights and obligations. So here: for example by clause 4 the provisions of the National Conditions of Service are excluded. The contract contains what I have called the parties "own law".

Unhappy differences arose between them. The plaintiff in her evidence mentioned some incidents especially one on Kiritimati Island in October and November last year. Who (if anyone) was responsible, who (if anyone) should bear blame for the difference is not relevant. The fact is the situation arose. The differences became irreconcilable.

What was to be done?

The minute (not yet confirmed but the accuracy of which Solicitor General did not challenge) of the OIPCC meeting of the 7th December 2006 shewed considerable dissatisfaction with the progress of the Project:-

It was agreed that UNDP should be notified of the committee feeling on the manager and the Output of the project and the committee will act very soon to end the contract or to pay her salary in advance so that she can finish early and a new person comes to take over the management of the project.

On 19th December the Government (through the Officer in Charge – MISA) wrote this letter to the plaintiff:

Dear Ritia

Subject: Relief from Management Responsibility

During the last meeting of OIPCC, the committee considered the difficult circumstances currently faced by, and which they believe could seriously endanger the future of the project. In view of this, I was entrusted with the difficult task of conveying to you the decision of the Committee to terminate your contract and relieve you from your duties as Manager of the SDGIK project, with effect from the date of this notice.

It is also agreed that for the mutual benefit of both parties, it is suggested that the project will pay you 2 months salary from January and February.

On behalf of OIPCC and the Ministry I wish to convey sincere gratitude for the great effort you have put into this project over the past few months since you took reins of the project.

I thank you immensely for your service and wish you the best.

The plaintiff consulted her solicitor.

Mr Kaongotao submitted that the plaintiff had been wrongfully dismissed, had not been afforded natural justice. He relied on clause 14 of the Contract. Yet in terminating the contract the Government relied on clause 11 of the Agreement, not clause 14. Clause 11 was sufficient to make termination valid and lawful. Government did not rely on clause 14 nor need it have.

Under clause 11 no reason need be given but clause 11(b) provides that the plaintiff must be paid "two months’ salary in lieu of notice". The plaintiff acknowledged she has been paid the salary.

During his address the Solicitor General referred me to Weibenga v Uta’ata, a decision of the Supreme Court of Tonga ([2004] TOSC 42]). In his judgment Ford J cited the advice of the Privy Council in Nicholas Reda and Another v Flag Ltd (Bermuda) ([2002] UKPC 38) remarking that, "the exercise of the power does not have to be justified. A power to dismiss without cause is a power to dismiss for any cause or none". These two cases may be the latest in a long line of cases expounding the law in more elegant terms than I can.

In Reda’s case their Lordships said:

42. Under the terms of the appellants’ contracts, therefore, Flag had an express contractual right, which it exercised, to bring the appellants’ contracts of employment to an end at any time during the contract period without cause. Their Lordships agree with Flag that that is an end of the matter. As the Court of Appeal observed, "the very nature of such a power is that its exercise does not have to be justified".
    
43. The principal ground on which this was disputed by the appellants at trial was that the decision of Flag’s Directors to bring their contracts to an end was vitiated by their "collateral purpose" in seeking to avoid having to grant the appellants stock options. But in the present context there is no such thing as a "collateral" or improper purpose, a power to dismiss without cause is a power to dismiss for any cause or none ....
    

Despite the care with which Mr Kaongotao presented his case and argued it, his client’s claim must fail. There will be judgment for the defendant.

Dated the 21st day of March 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice