Kauabanga v Attorney General [2010] KIHC 14; Civil Case 117 of 2009 (3 February 2010)

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

High Court Civil Case 117 of 2009

BETWEEN:

ATANTAAKE KAUABANGA & OTHERS
PLAINTIFFS

AND:

ATTORNEY GENERAL IRO MINISTRY OF
WORKS AND ENERGY
RESPONDENT

For the Plaintiffs: Mr Banuera Berina
For the Respondent: Mr Birimaka Tekanene

Date of Hearing: 3 February 2010

JUDGMENT

Each plaintiff claims payment of benefits to which permanent employees are entitled on termination of their employment.

At the outset of the hearing of the claims, at Mr Berina’s request and Mr Tekanene not opposing, I ordered, "that the persons named in the Statement of Agreed Facts dated 21 January 2010 numbered ‘b’ to ‘bb’ be added as plaintiffs in this action.

The names are set out in paragraph 1 of that Statement. Appended to these reasons is a copy of the Statement of Agreed Facts dated 21 January 2010 and also a copy of a later Statement, dated 3 February 2010.

During discussion with counsel reference was made to section B, paragraph B2 of the National Conditions of Service:-

Temporary Appointments

B.2 Secretaries and Managers of Statutory Bodies may make appointments on temporary terms for period up to 2 months without reference to the Public Service Commission. Application for extension beyond 2 months must be submitted to the Public Service Commission.

Recruitment of Temporary appointees shall be conducted through the National Employment Register.

Mr Tekanene conceded that the employer had not complied with the requirement to apply to the Public Service Commission for extension beyond two months, never in the case of any of the plaintiffs.

I first decided the principles on which these claims should be decided in Buaro Beia v Attorney General iro Plant and Vehicle Unit (HCCC 4/07).

There was no appeal from that decision. Yet the Attorney Genera tried again to persuade me in Atanibeia Koria and Others v the Attorney General iro Ministry of Works and Utilities (HCCC 52/09), to change my mind.

From the Judgment in Atanibeia’s case:-

I set out the principles applicable in HCCC 84/07, Buaro Beia v Attorney General in respect of Plant and Vehicle Unit. Even the facts of that case were similar to those in this. The plaintiff succeeded: there was no appeal. It is unlikely I will change my mind but the defendant is, I suppose, entitled to try to change it.

Atanibeia and the other 26 were employed at L17-19 – at the bottom of the pay heap. When they were terminated the defendant refused to pay them any of the benefits mentioned in the Sample Redundancy Agreement set out in Appendix C1 of the NCS. The defendant argued that the 27 had been employed on a temporary basis for two months at a time and had been renewed every two months. As in Buaro Beia’s case, this was probably regarded by the defendant as a neat way of getting round NCS provisions B2 and B19. Not only a neat way of getting round the NCS but also a neat way to avoid making payment to the plaintiffs!

A number of the letters written to Atanibeia were tendered..... Letters every two months or not, it is agreed that Atanibeia was employed full time and continuously for some time in 2003 until he was put off in 2008.

I find he was in a full time employment of the defendant.

Now the Attorney General is trying yet again. Despite Mr Tekanene’s submissions I have not changed my mind. Each plaintiff succeeds on liability.

Counsel agreed that should I come to this conclusion the claim of each plaintiff is to be assessed or, more likely and more hopefully, quantum will be agreed.

Dated the __________ day of February 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice