Tewaaki v Attorney General [2010] KIHC 37; Civil Case 186 of 2009 (16 March 2010)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION

High Court Civil Case 186 of 2009

HELD AT BETIO
REPUBLIC OF KIRIBATI

BETWEEN:

KORATIKA TEWAAKI
Plaintiff

AND:

ATTORNEY GENERAL
iro Ministry of Health and Medical Services
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Ms Taaira Timeon

Date of Hearing: 16 March 2010

JUDGMENT

The plaintiff, Nei Koratika Tewaaki, worked continuously in the Pharmacy section of the Tungaru Central Hospital from 2002 until 2009 when she was put off. She was variously a dispensary assistant or a packer. The question is, was she a temporary employee whose contract was renewed every two months? Should she be treated as a permanent employee?

The defendant attempted to shew that the plaintiff did not work in 2003. The plaintiff said she did. The only defence witness, Nei Veronica Taake, Assistant Secretary in the Ministry, admitted she could not say whether the plaintiff worked in 2003 or not. There were no records. I find the plaintiff worked continuously.

The plaintiff was employed by the Ministry from 2002 to 2009. She acknowledged that she was given most every two months a letter extending her employment. Sometimes the letter came late: sometimes she had to remind them to give her a letter. If the Ministry had complied with the requirements of National Conditions of Service B2 ("Application for Extension beyond two months must be submitted to the Public Service Commission") I may have been inclined to find that the employment was genuinely temporary. However Nei Veronica admitted that no such application was ever made:-

This lady simply kept on working in one or other capacity all this time.

Mr Berina tendered by consent a number of documents which, he argued, support his client’s case.

The first, a memorandum dated 22 May 2008 from the Secretary PSO to Accountant General MFED (Exhibit P1):-

Re: Temporary Appointment – Nei Koratika Tewaaki .....

I have gone through the officer’s case and found out the above named has recruited on temporary basis since 2002 to fill in the position of Dispensary Assistant within the Pharmacy section. The position carries the salary level of L15-14, conversely, upon recruitment: she was paid on L19 up until April 2008.

The purpose of writing this letter is to seek your utmost assistance to pay officer’s underpaid salary since 2002 when first appointed until correction of salary was just made on 30/04/08. (See temporary form attached). Further, as in line with NCS A6(b), this office regret to convey approval for past years: 2002 to 2006, therefore in complying with NCS ruling, approval is conveyed for period 1st January 2007 up to 30/04/08.

The second, a memorandum dated 06/06/08 from the Secretary (PSO) to the Accountant General (Exhibit P2):-

Re: Temporary Clearance

In accordance with NCS B9 and PSO Circular No. 1 of 2004 for recruiting temporary employees, I am satisfied that the following recommended officer is qualified to fill in established post which is currently vacant at the MHMS (Pharmacy).

Designation	Salary	Name	Period
Pharmacy Assistant	L15/1	Koratika Tewaaki	02/06/08-30/06/08

Please note that this approval is only valid for 2 months. Further applications for extension of these appointments should be dealt with under employment arrangements in line with NCS B16(a).

The third, a letter dated 11 June 2009 from Nei Veronica to Mr Berina (Exhibit P3):-

The Ministry of Health and Medical Services wishes to convey its apology for the delay in responding to your request, as letters were just put up to my attention.

In view of the above, this Ministry request to extend payment for another week or so as the matter is now being processed with appropriate authorities. [Nei Veronica said in evidence all this letter meant is "please wait another week for payment of leave entitlement as claimed".]

These documents do support the plaintiff but even without the support her case succeeds. Her situation comes within the principles in HCCC 84/07 Buaro Beia v The Attorney General repeated in HCCC 52/09 Atanibeia Koria & Ors v The Attorney General. The plaintiff was in the full time employment of the defendant. She is entitled to be treated as a full time employee.

Ms Timeon took the point that part of the claim is statute barred, goes back more than six years. She supported her argument by reference to HCCC 70/05 Tanana Abeton v The Attorney General.

NCS A6(b):-

No claim by an employee for allowance or any other awards in National Conditions will be entertained unless the claim is made within twelve months of the event which gives rise to the claim.

The plaintiff had made no claim within 12 months.

Mr Berina replied that A6(b) refers only to "allowance or any other awards": it does not refer to salary which is the claim here. The NCS do not apply in this case but the Limitation Act does.

My judgment in Abeton’s case is not entirely clear on the point but it seems to be that the claim for salary is statute barred unless made within six years. That would bar beyond six years the plaintiff’s claim, probably made some time in 2008. I should follow the earlier decision.

The plaintiff should be regarded as a permanent employee of the Ministry from some time in 2002, should be paid accordingly a salary at the appropriate rate and is entitled to the appropriate allowances and awards not barred either by NCS A6(b) or Section 4 of the Limitation Act.

It is to be hoped that the parties may now be able to agree on the plaintiff’s entitlements. Otherwise I shall need to hear further evidence and argument.

Dated the day of March 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice