Betaia v Development Bank of Kiribati [2014] KIHC 42; Civil Case 183 of 2010 (15 October 2014)

IN THE HIGH COURT OF KIRIBATI

CIVIL CASE NO. 183 OF 2010

BETWEEN

ARATA BETAIA
APPLICANT

AND

DEVELOPMENT BANK OF KIRIBATI
DEFENDANT

Before: The Hon Mr Justice Vincent Zehurikize

15 October 2014

Ms Banuera Berina for Applicant
Ms Bwatuate Itibita for the defendant

JUDGMENT

The plaintiff sued the defendant for payment of a total of $7,199.75. The particulars totalling to this sum of money are set out in the statement of claim.

The facts giving rise to the cause of action are as follows:

The plaintiff was employed by the defendant as a Senior Loan Officer based in the Kiritimati Branch.

By letter of 4/7/2009 the defendant suspended the plaintiff without pay pending the Board's final review of her case.

Then later by letter dated 19/10/2009 the defendant communicated to the plaintiff that her employment had been terminated as a result of the Board's meeting held on 11/9/2009. This letter of termination spells out the reasons of the termination of employment.

In the letter it was stated that the termination took effect from 11/9/2009. In compliance with the bank's termination procedure the defendant would make immediate arrangement to repatriate the plaintiff and her family to Tarawa.

The offer of repatriation would be valid for six months effective from the date of the letter of termination. It appears the repatriation was done but belatedly.

When the case came up for hearing Mr Banuera Berina appeared for the plaintiff while Ms Itibita was for the defendant.

The plaintiff filed and relied on affidavit evidence in support in support of her claim.

The defendant did not adduce any evidence but sought and did cross examine the plaintiff at the trial. Both counsel made useful submissions. However no clear issues were agreed upon by counsel.

From the pleadings on a record and the evidence as a whole I find that the following issues emerge for determination by court namely:

1- Whether the plaintiff is entitled to payment of her salary for the period she was under suspension.
2- Whether the plaintiff is entitled to maintenance allowance for the period she waited for repatriation funds.
3- Whether she is entitled to one month's pay in lieu of notice.
4- Any other remedies available to the parties.

On the first issue Mr Berina submitted that on terminating the plaintiff's employment the defendant relied on Bank conditions of service clause B11 (i) and (ii) claiming that they had been breached.

That in that case the plaintiff was entitled to one month's pay or that the defendant could not deny her pay of her salaries during the time of suspension.

It was his case that the power to suspend without pay is only possible under clause B13 of the conditions of service.

On the other hand Ms Itibita, referring to various provision of the conditions of service, was of the view that the time of suspension operated as notice and that the plaintiff is entitled to payment for 2 months and 6 days that is the period from 7/7/2009 to 10/9/2009 less the 20 days she could have been suspended without pay in accordance with the conditions of service.

I have perused the staff Conditions of Service of the Defendant Bank which were availed to me. Save to the method of calculation, it is clear to me that both counsel agree, and correctly so, that the plaintiff was entitled to payment of her salary during the time she was on suspension.

Management can only suspend an officer without pay or notice where a recommendation is made to the Board for dismissal in the circumstances stipulated under that clause which did not apply to the plaintiff in the instant case.

Further under clause C.28 (b) in case of misconduct which would normally warrant summary dismissal of an officer, the management may suspend an office without pay and then recommend dismissal to the Board. Such was not the circumstances in the instant case. Consequently for the above reasons and in agreement with the both counsel's submission the first issue is answered in the affirmative.

The only issue is the amount that is claimable. I do not agree with counsel for the defendant that one can import in the issue of 20 days without pay since this was not the route taken by the defendant. This was a case of mere suspension pending the decision of the Board.

The decision of the Board was allegedly arrived at on 11/9/2009 but communicated in the letter of 19/10/2009. In my view the effective date is 19/10/2009.

I have not been persuaded that it was communicated to her on 26/2/2010. Since the suspension, according to the letter of suspension (annex "A" to the plaintiff's affidavit), took effect from 5/7/2009 and the letter of dismissal was issued on 19/10/2009. I find that she was on suspension for 3 months and 15 days.

She was earning $505.50 per month. The three months call for an income of $1,516.5. The 15 days brings in an income of $252.75. Therefore the total amount awardable under this head is $1,769.25.

Again as already indicated above the plaintiff by virtue of the provisions of clause B11 she is entitled to one month's pay in lieu of notice which is the claimed sum of $505.50. The above similarly resolves issue N03 in the affirmative. What remains is whether the plaintiff is entitled to maintenance for the period she was waiting for repatriation funds. Both counsels did not agree on this.

I was not able to see the provision for repatriation in the staff conditions of service of the defendant. Reference was made to the National Conditions of Service but a copy of the same was not available to me. However in the termination letter it is clearly stated as follows:

"To comply with our termination procedure this Bank will immediate arrangement to repatriate you and family to Tarawa. This offer will valid for six months only effective from the date of the letter. Our officers in Kiritimati will advise you on this arrangement as soon as possible".

In Attorney General IRO Commission of Police versus Mikaere Aree C.A. No. 15 of 2011 which was cited to me, I was able to find the following extract from the National Conditions of Service(NCS) as follows:

"H 15 An employee travelling on retirement or on termination of appointment other than dismissal, and on completion of contract, is entitled to transport for himself, his wife and all of his children from place of duty to his home island in the class appropriate to his position provided the passage are taken up within six months".

My understanding of what is contained in the termination letter and the above extract from the National Conditions of Service, is that the right to repatriation is valid for a period of 6 months such that if the employee does not utilize it during that period he or she can not have a right to complain.

Conversely if the employee demands for the repatriation and the employer fails to release the Funds, he/she will be held liable for the damage caused to the employee.

Since I have held that the effective date for termination of the employment was 19/10/2009 the six months started running from that date till 19/4/2010.

In the instant case the repatriation funds were given to the plaintiff by 3/9/2010. This implies that the defendant was in default by failing to perform part of their obligation within time. For this breach, the plaintiff is entitled to damages:

The question is what quantum of damages is available to the plaintiff. The plaintiff claimed an expenditure of $20 per day from 26 March to
3rd of September 2010. This claim is what is known as special damages.

The law in this respect is that special damages must be pleaded specifically and strictly proved.

In the instant case the plaintiff could not explain on how she arrived at the expenditure of $20 per day. She indicated that it was her lawyers estimate that determined the amount. The claim of $3240.00 is disallowed as it was not strictly proved.

However it must be noted that the defendant went far beyond the period of six months mentioned in their letter before they could pay the expenses for repatriation. In these circumstances I find that the plaintiff is entitled to general damages as a result of the defendant's default. Considering the circumstances of this case and doing the best I can, I find that the sum of $1000 is appropriate as general damages.

In the final result I find that the plaintiff has proved his claim in a balance of probabilities and judgment is entered for her in the following terms:

1. Payment of $1,769.25 being the month's salary for 3½ months when she was under suspension.
   
2. Payment of $505.50 being payment of one month's salary in lieu of notice
   

100. Payment of $1,000 as general damages
     

4. Costs of this suit
   
5. All the above awards will attract interest at the rate of 5% per annum form the date of this judgment till payment in full.
   

Dated the 15th day of October 2014

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge