Taairake v Attorney General [2014] KIHC 44; Civil Case 215.2010 (17 October 2014)

IN THE HIGH COURT OF KIRIBATI 2014

CIVIL CASE NO. 215 OF 2010

BETWEEN

TEMAKAU TAAIRAKE
PLAINTIFF

AND

THE ATTORNEY-GENERAL IRO THE MINISTRY OF LINE & PHOENIX
DEFENDANT

Before: The Hon Chief Justice Sir John Muria

6 June 2014

No Appearance by or for Plaintiff
Ms Bitarana Yeeting for Defendant

RULING

Muria CJ: The defendant applied by way of Notice of Motion dated
12 November 2013 and filed on 13 November 2013 seeking the Court to determine a number of preliminary issues, namely:

Whether or not the plaintiff's claims are time-barred pursuant to:

(i) Clause A.6(b) and A.11 of the National Conditions of Service;
(ii) Section 4(1)(a) of the Limitation Act; and
(iii) The principles of estoppel and laches.

Notice of hearing had been served on both Counsel for the plaintiff and defendant on 29 May 2014 for the hearing on 6 June 2014, 9.30 am (see Affidavit of Service by Nikora Tokam sworn to on 2 June 2014). When the case was called on 6 June 2014, only Counsel for the defendant was present. Being satisfied of service of notice of hearing on Counsel for the plaintiff, and there being no explanation for non appearance by the plaintiff or his Counsel, the Court proceeded to hear the defendant's application.

The plaintiff was employed by the defendant as a watchman from 1987 to September 2008 when he was laid off. He claims against the defendant unpaid overtime allowances, unpaid salary increments and unpaid Kiribati Provident Fund contribution. The total claim amounts to $179,426.99. In his subsequent affidavit filed on 22 April 2012, the plaintiff reduced his total claim to $86,078.00.

It is submitted that the preliminary issues raised in the Notice of Motion, and set out above, raise legal issues that should determine the fate of the plaintiff's claim in this case.

Ms Yeeting of Counsel for the defendant, sought to deal with the claim for KPF contributions. Counsel submitted that the right to claim for unpaid KPF contributions for the plaintiff lies with the KPF Board. Counsel relies on section 40 of the Provident Fund Ordinance. Section 40 of the Public Fund Ordinance provides as follows:

"S.40 (1) All contributions payable under the provisions of this Ordinance may, without prejudice to any other remedy, be recoverable by the Board as a civil debt.

(2) Proceedings for the recovery as civil debts of any contributions may, notwithstanding anything in any law to the contrary, be brought at any time within 6 years from the date the contributions became due.

(3) Proceedings for the recovery as civil debts of contributions, and applications under section 39, may be instituted by the Manager, or by any officer, servant or agent of the Board authorised in writing in that behalf by the Manager, and the Manager or any such authorised officer, servant or agent may conduct any such proceedings for recovery, or proceedings arising out of any such applications, whether or not he was the person who instituted the proceedings or applications".

I accept Counsel's submission that the right to institute proceedings claiming unpaid Provident Fund contributions for an employee (plaintiff) from the employer (Government) lies with the KPF Board. The plaintiff may wish to take the matter of his KPF contributions up with the KPF Board. The Board has six years to issue proceedings in this regard if the plaintiff's KPF contribution (if any) has not been paid yet.

As to his claim for unpaid overtime allowances and salary increments, the plaintiff has six years to issue proceedings to claim such entitlements if the defendant has not met them. However under the National Conditions of Service which governs his employment, the plaintiff has to make his claim to his employer (Government) within 12 months as provided under Clause A.6(b), National Conditions of Service which states:

"A.6(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 provisions of the National Conditions of Service govern his employment contract. The plaintiff must first comply with the terms of his employment. He is bound first by the terms of his contract of employment. If he had so complied, he can then bring an action (assuming he is not happy with his employer's response) to the Court. He has, of course, six years to do that, but he must make his claim within "12 months of the event which gives rise to the claim" to his employer (defendant).

The time limitation under Clause A.6(b) of the National Conditions of Service has nothing to do with the time limitation under Section 4 of the Limitation Act. The provisions of the National Conditions of Service govern the plaintiff's employment relationship with his employer (defendant).

The plaintiff says he is entitled to unpaid overtime allowances and unpaid salary increments for the years 1987-2008. The first time he made his claim for unpaid overtime to the Ministry responsible was by a letter dated 12 October 2008 and for unpaid salary increments by a letter dated 29 May 2009. According to his letters of 12 October 2008 and 29 May 2009, his claims were confined to the years 2001-2008. Following the two letters of claim, the Ministry adjusted and corrected his overtime and salary increment payments for the years 2001-2008.

However, although the claims for 2001-2008 were made in 2008 and 2009, and it was more than 12 months for the plaintiff to claim for his entitlements for the years 2001-2007, it must be taken that the defendant has accepted and waived the 12 months limitation under A.6 when it dealt with the plaintiff's claim for those years. The defendant cannot set up the time limitation under the National Conditions of Service in respect of the plaintiff's claim for those years.

The claim, however, for unpaid overtime and unpaid salary increments for 1987 to 2000 are clearly barred by A.6 of the National Conditions of Service. They have been left out in the letters of claim referred to and so they are out of time to be claimed against the defendant under Clause A.6 of the National Conditions of Service.

I find that the plaintiff's claims for unpaid overtime allowances and unpaid salary increments for the years 2001 to 2008 having been submitted and attended to by the defendant, they must be taken to have been made within the time allowed in Clause A.6 of the National Conditions of Service. They are therefore not time-barred. Only claims for the years '1987-2000 are time-barred, both under A.6 of the National Conditions of Service and section 4 of the Limitation Act.

That really answers the question posed in the Notice of Motion. I feel the issues of estoppel and laches do no fall appropriately to be determined as preliminary points at this stage. I do not consider them here.

In answer to the question posed for determination in the Notice of Motion, I rule that plaintiff's claim for unpaid allowances and unpaid salary increments for the years 2001 to 2008 are not time-barred. The trial on the plaintiff's claims for those years must proceed.
The plaintiff's claims for the year 1987 to 2000 are, however, time-barred.
Rule accordingly.

Dated 17 October 2014

SIR JOHN MURIA
Chief Justice