Metutera v Kiribati Shipping Services Ltd - Judgment [2007] KIHC 88; Civil Case 36 of 2007 (10 May 2007)

In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 36 of 2007

Between:

Toauriri Metutera
Plaintiff

And:

Kiribati Shipping Services Ltd
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Ms Taoing Taoaba

Date of Hearing: 8 May 2007

JUDGMENT

In 2006 the plaintiff, Toauriri Metutera, was the Master of LC Betiraoi. The vessel was plying in the Linnix Islands. There were mechanical problems and mishaps. Eventually it sailed no more. The detail of what went wrong and whether Toauriri should be held responsible are not for decision by the Court. The Board of the defendant, KSSL, though, concluded that Toauriri should be held responsible. The Board dismissed him.

The then Chairman of the Board, Boorau Koina and the General Manager, Itibwinnang Aiaimoa, told the Court that the decision to dismiss was based on information either in Toauriri’s letters reporting and explaining what had happened or in the reports of Management or both (the evidence is rather confusing). Toauriri was informed of the decision to dismiss by letter of 23rd January: he was given an invitation to appeal. Toauriri did not have the opportunity to appear before the Board either before the decision to dismiss nor on appeal when the earlier decision to dismiss was confirmed. In his evidence Toauriri said that he would have had nothing more to tell the Board than in his letters.

Toauriri claims to have been unlawfully dismissed in not being given the opportunity to appear personally before the Board. At the time the Board was considering the matter he was back in Tarawa and could have appeared.

Mr Berina, for the plaintiff, based his argument on Chapter 7(5) and (6) of the KSSL Terms of Service:

(5) Suspension for Good Cause

The General Manager shall have the power to suspend the appointment of a Company employee, provided that he shall forthwith report to the Chairman of the Board the facts of such suspension, together with the grounds for his action and any statement an employee may wish to make. The Company employee shall have a reasonable opportunity of being heard by the Board;

The Board may revoke the suspension or the company may remove the employee from his office for good cause, or some other action taken.

(6) Removal for Good Cause

Any company employee may be removed from office by the Board for what the Board, after due consideration, deems to be good cause.

It would have been fairer and it would have looked fairer if Toauriri had been given an opportunity to appear before the Board and to speak to and be questioned on his reports. Furthermore, the opportunity to appeal to the Board from the decision of the Board was an appeal to itself. The Board may have acted, in considering the appeal, with scrupulous fairness but it certainly was an appeal "from Caesar unto Caesar". It does not give the appearance of fairness.

As a matter of justice and to give the appearance of justice, it would have been appropriate for the Board to have heard Toauriri personally. Yet, in this instance, does justice translate into a legal obligation?

Mr Berina argued that subclauses (5) and (6) of Chapter 7 should be read together. He needs to succeed on this point for 7(5) contains what 7(6) does not:-

"The Company employee should have a reasonable opportunity of being heard by the Board".

Unless that obligation be imported into 7(6) from 7(5) then the plaintiff’s case is much weaker. No doubt that the Board must hear an employee before confirming or varying a suspension.

Chapter 7 sets out six ways in which a termination may be effected:-

- Resignation

- Retirement and optional retirement at 45

- Illness

- Suspension for Good Cause

- Removal for Good Cause

Each of these is a separate head and is to be read separately. Only (5) "Suspension for Good Cause" gives an employee "a reasonable opportunity" to be heard "by the Board". (6) does not. Whether the omission is deliberate or an accident of drafting the opportunity is not given in (6). The opportunity cannot be imported from (5) to (6) for (5) and (6) are separate ways of termination. There is no obligation under (6) – even though it would be the fair thing to do – for the Board to hear an employee before removal for good cause. Mr Berina’s argument fails.

Mr Berina’s other argument is that the phrase in (6) "after due consideration" imports an obligation to hear an employee in person. "Due consideration" means considering calmly and thoroughly every relevant factor. It does not necessarily – however desirable it may be that it should – include hearing an employee in person. This argument also fails.

Toauriri was not unlawfully dismissed in not being given an opportunity to put his case in person to the Board.

Counsel agreed that I should first decide liability and later, if necessary, assess damages. That will not now be necessary.

There will be judgment for the defendant.

Dated the 10th day of May 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice