Maio v Attorney General Iro Ministry of Labour and Human Resources Development [2012] KIHC 15; Civil Case 186 of 2010 (8 June 2012)

IN THE HIGH COURT OF KIRIBATI

CIVIL CASE NO. 186 OF 2010

BETWEEN

WAUERI MAIO
APPLICANT

AND

ATTORNEY GENERAL IRO MINISTRY
OF LABOUR AND HUMAN RESOURCES DEVELOPMENT
RESPONDENT

Before: Hon Chief Justice Sir John Maria

7 June 2012

Mr Raweita Beniata for the Applicant
Mr Monoo Mweretaka for the Respondent

JUDGMENT

Muria CJ: The applicant seeks an order to quash the decision of the Fisheries Training Centre Management which dismissed him on 26 January 2010. Leave to issue these judicial review proceedings was granted on 27 February 2012.

The brief background circumstances of the case are that the applicant was an intake at the Fisheries Training Centre (FTC) in Bikenibeu, South Tarawa. The Centre is an established disciplined school for I-Kiribati men who want to become seafarers on Japanese fishing vessels. The Centre is under the control of the Ministry of Labour and Human Resources Development. To foster disciplinary measures, FTC has established Rules known as the "Rules Book" which were revised in 2010, the FTC Rules Book 2010 Revised Edition.

On 26 January 2010, as part of his disciplinary training, the applicant was on duty watch between 0400-0600 hrs. During his watch, he wrote an entry in the Log Book, calling one of the staff a "chicken man" who was in fact a member of a Kitchen staff and whose real name was Moataake. The Entry on the Log Book shows as follows:

Date	Names	Time
26/01/10	3924	0541	Wake up call to chicken-man for his preparation.

At 0600 the applicant signed off at the end of his watch and handed over the Log Book to the next Trainee on duty watch. That next shift saw the entry made by the applicant and brought it to the attention of the applicant who then crossed out the word 'chicken-man' and wrote the cook's real name, 'Moataake' and then left.

The applicant was later that morning (26/1/10) called from the classroom by the Deputy Principal of the school. The Deputy Principal told the applicant that his action in making an Entry in the Log Book calling one of the staff a 'chicken-man' was wrong and unacceptable. The FTC Management Team comprising the Principal, Deputy Principal, Fishing Instructor and Deck Instructor, called the applicant into the Boardroom and told him that what he did was a swearing offence and a very serious matter inviting immediate dismissal. The applicant responded and pleaded with the Management Team to reconsider their position. The applicant was asked to wait outside while the Management Team consider the matter. The applicant was later called back into the Boardroom where the Management advised the applicant that in their view, he should be dismissed. The applicant was dismissed immediately.

The applicant appealed on 28 January 2010 in a letter written to the Secretary of Ministry of Labour and Human Resources Development. The appeal was put before the FTC Management Team members who decided that the Management's previous decision should stand.

Basically the grounds relied upon by the applicant in this application are:

1. The applicant was not given the opportunity to respond to the allegations and as such was denied procedural fairness and breach of rule of natural justice;
   
2. There was a likelihood of biasness since the members of the Management Team who decided to dismiss him were the same members who sat to rehear his appeal.
   

Mr Beniata of Counsel for the applicant, while addressing the action of the applicant in relation to his usage of the words 'chicken man" in the Log Book, focused more on the manner in which the respondent punished the applicant for what he did. Hence Counsel's submission was basically focused on the two grounds mentioned above. In contrast, Mr Mweretaka of Counsel for the respondent, simply focused on whether the word "chicken man" used by the applicant constituted a breach of the FTC Rules Book and whether it justified the punishment meted out to the applicant.

In the Court's view the case goes beyond a breach of the FTC school rules. The case is very much concerned with the disciplinary procedure in a case where a person to be disciplined has been found to have broken rules of discipline.

The offence: calling a staff "chicken man"

The applicant admitted he wrote the word "chicken-man" in the Log Book and that it was meant as a reference to the cook, a member of the kitchen staff. The applicant proffered two explanations on the use of the word "chicken-man". First he argued that the word 'chicken-man' is not a swear word and so there was no breach of the FTC Rules Book. Secondly, he said that when the next in shift took over from him and pointed to the Entry in the Log Book on the use of the word "chicken-man", the applicant crossed out the word and wrote the name of the cook, Moataake instead. This he said was because he meant to use the word "kitchen-man" since he was referring to Moataake, the cook in the kitchen.

Mr Mweretaka submitted on behalf of the respondent that the applicant deliberately used the word "chicken-man" to refer to the cook, Moataake whose name in the Kiribati vernacular encompassed the world "chicken". Mr Mweretaka further argued that the word is also rude and offensive in Kiribati culture and so comes within FTC Rules Book 2010, clause 14.4.

In the Court's view, and in the context of Kiribati and particularly in the context of this case, the use of the word "chicken-man" is both rude and offensive. It therefore comes within Clause 14.4. Swearing at someone is to use words that are vulgar, rude, offensive and calculated to annoy a person. It is therefore a necessary rule of discipline to have against the use of such word in disciplinary setting.

Substantive Fairness

The Rules – Clause 14.4 – makes it clear that swearing at authorities including instructors, staff, supporting staff and staff visitors is a very serious disciplinary offence and so even for first offence and the punishment is dismissal. Other offences set out in Clause 14.4 and they are all punishable by dismissal even on first offence.

The applicant argued that he did not intend to use the word "chicken-man" as a swear at the staff member. Unfortunately for the applicant, the "very serious offences listed in Clause 14.4 are strict disciplinary offences. Either the offender has committed them or he has not. No element of intent can be gleamed in any of the offences listed in that provision. The Court does not accept the applicant's argument that he did not intend to swear at the staff concerned.

The applicant broke a rule of conduct under Clause 14.4 of FTC Rules Book namely it is forbidden to swear at instructors, staff, supporting staff and staff visitors. That Rule was made for a perfectly valid reason of instilling good conduct, respect and discipline on the Trainees and in the school. The applicant knew about the Rule or should have known a bout it and that dismissal was the appropriate measure of punishment for breaking the Rule. In the present case it was the only form of punishment laid down for committing the very serious offences under Clause 14.4 there is therefore substantive fairness in the respondent's action against the applicant in this case.

Procedural Fairness

Having found that the word "chicken-man" used in this particular case was a swear word, rude and offensive under Clause 14.4 of the Rules Book, the next consideration is whether the respondent complied with the rules of procedural fairness in disciplining the applicant by way of dismissal. It will be noted that under Clause 14.4 of the FTC Rules Book, there is only one punishment for the serious offences set out in that provision. That punishment is dismissal.

There is, in addition to substantive fairness, the need for procedural fairness when dismissing a person from his/her employment, or engagement. In order to achieve this procedural fairness the person to be disciplined must be informed of the charge and be given enough time to prepare to be heard on the charge. He must be given an opportunity to put his case and any decision on the case must be given to him in writing. The person must also be informed of his right to appeal where the decision is against him.

In this case, the applicant's case arising out of his entering on the Log Book the word "chicken-man" a reference to one of the staff, was placed before the FTC Management Team. The applicant was called to the Boardroom where he was told that the word he entered in the Log Book was unacceptable and warrant dismissal. He responded and asked the Management Team to reconsider their position. The applicant was then told to go outside while the Management Team deliberated on the matter. He was called back into the Boardroom and was formally told that he was dismissed. Up to that stage I do not think the applicant can complain of procedural unfairness. There was opportunity for him to put his case and which he did, although it might have been brief.

The next step was that he appealed against the FTC Management Team. Unfortunately, the appeal was heard by the same persons who heard and decided the matter against him earlier. The basic rule of fairness is that a tribunal should not sit on the appeal tribunal to hear an appeal against its own decision. As rightly pointed out by Mr Beniata, that such a practice would send a message of appearance of likelihood of bias. This is a breach of the rule of procedural fairness.

Would this breach of procedural fairness make any substantial impact on the case against the applicant. I think not. The result would likely be the same even if the composition of the appeal body was different; since there was only one punishment for the offence, namely dismissal.

Certiorari is a discretionary remedy.

Despite procedural fairness has not been fully complied with by the respondent, the Court will exercise its discretion and refuse the remedy of certiorari, since the Court finds that substantial fairness has been done to the applicant in this case.

Application refused.
No order on costs.

Dated the 8th day of June 2012

SIR JOHN MURIA
Chief Justice