Tekanene v Attorney General iro Minstry of Public Works and Utilities [2011] KIHC 51; Civil Case 113 of 2010 (19 August 2011)

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

HIGH COURT CIVIL CASE 113 OF 2010

BETWEEN:

TIAON TEKANENE
PLAINTIFF

AND:

THE HON. ATTORNEY GENERAL iro
MINISTRY OF PUBLIC WORKS AND UTILITIES
DEFENDANT

FOR PLAINTIFF: BOTIKA MAITINNARA
FOR DEFENDANT: ERETA BRUCE

Date of Hearing: 5 August 2011

JUDGMENT

This is one of the employment cases. A brief history of the case is as follows:

The plaintiff, Tiaon Tekanene was employed by the defendant sometimes in 1989 as a machinist. On the 26 August 2008 he received a termination letter from his employer stating that his employment is ceased on that same day. He received $285.00 as a fortnight salary. His last salary also ceased on 26 August 2008. On the 5 September the plaintiff wrote to the defendant, asking for a time to be heard. On 10 September the defendant replied that the plaintiff is given 10 days to present a report to the General Manager and Permanent Secretary on the allegations against him. On the 15 September the plaintiff submitted this report or appeal to defendant. No reply to the plaintiff was ever received.

The plaintiff now contends that his termination has not been confirmed and sues for damages

THE FACT

The facts as stated in the historical background above are undisputed.

ISSUES

At the beginning of the hearing both Counsels stated the issues. The defendant submitted the issue as being 'whether or not they have complied with the termination process under the NCS'. The plaintiff, on the other hand, submitted the issue as being 'whether or not the plaintiff's termination has been confirmed'.

Whether or not termination process had been complied with.

Both Counsels agreed that C7 of the National Conditions of Service (NCS) governs the relevant procedure or process for termination. This was also stated in the General Manager's affidavit.
C7 states as follows;

" Employees whose salary is above level 14

The Senior Responsible Officer will notify the employee in writing that termination of his appointment has been recommended to the Public Service Commission. The employee will be given full reasons for this recommendation and advised that should he wish to make representations to the Public service Commission he must do so within ten days of receipt of the letter.

The Public Service Commission will make further inquiry if necessary and on the basis of the total information shall decide whether or not the appointment of the employee is to be terminated"

The defendant's case is that the plaintiff's employment was terminated pursuant to C7 of the NCS. The General Manager, in her sworn affidavit, believed they had complied with the correct termination procedure, which is C7. In her affidavit she submitted that the plaintiff had been disciplined many times and at one time he was suspended for 20 days for damaging the office vehicle. She believed that when he did the same thing again in 2008 he had to be dismissed. And that was when they handed him a termination letter on the 26 August 2008, in their belief that this was done pursuant to C7.

Ms Bruce, Counsel for the defendant, conceded that when the plaintiff made a report or appeal to the defendant on the 15 September 2008 the defendant did not reply. They believed that a reply is not necessary as the plaintiff should not have appealed to them but to the Public Service Commission (PSC).

Ms Maitinnara, Counsel for the plaintiff, argued strongly that the defendant failed to comply with C7. There was no letter to notify the plaintiff that termination of his employment has been recommended to PSC. There was also no mention to the plaintiff that should he wish to make representation he must do so to the PSC.

I accept Ms Maitinnara's argument. The correct termination process had not been complied with. The defendant, other than submitting that they had complied with C7, failed to go further to prove that the requirements of C7 have been fulfilled. There was no letter to notify the plaintiff that termination of his employment has been recommended to PSC and that he must write to PSC should he wish to appeal.

Whether or not the plaintiff's termination has been confirmed

The plaintiff believed that his termination has not been confirmed. When he was given a 10 days to submit his report to the defendant he did so with the understanding that it should be answered. He never received the reply. That is how he based his claim that his termination is still not final.

The defendant, on the other hand, argues that the termination was final the same day he was informed of it, that is, in their letter dated 26 August 2008. His last salary was up to the day he received the termination letter.

From the evidences of both sides I find that termination of the plaintiff's employment was final. It was final or confirmed when the plaintiff received the termination letter and his last pay on the 26 August 2008. The plaintiff could not have believed that his termination has not been confirmed when he stopped receiving his salary after the 26 August 2008. He received nothing more after this date.

These were the only points/issues raised and argued by both sides, I shall not discuss any new points other than these.

In the circumstances I order that;

- The termination of the plaintiff's employment was final on the 26 August 2008, but that the correct termination process was not followed, resulting in unlawful dismissal.

I shall now hear the parties further for damages if they are not able to reach an agreement.

Dated 19 August 2011.

Tetiro M Semilota
Commissioner