Teikori v Attorney General [2014] KIHC 8; Civil Case 126 of 2010 (25 April 2014)

IN THE HIGH COURT OF KIRIBATI 2013

CIVIL CASE NO. 126 OF 2010

BETWEEN

TEMELI TEIKORI
PLAINTIFF

AND

ATTORNEY-GENERAL IRO MINISTRY OF HEALTH & MEDICAL SERVICES
DEFENDANT

Before: Hon Chief Justice Sir John Muria

27 November 2013

Ms Andrea Hadaway for Plaintiff
Mr George Mackenzie for Defendant

JUDGMENT

Muria CJ: In this case, the plaintiff is suing the defendant for unlawful termination of her employment and claims damages. The defendant denies the plaintiff's claim and counter-claims for overpaid salaries.

BRIEF BACKGROUND
The plaintiff was employed in the Ministry of Health and Medical Services as a Cleaner in 1999 on temporary appointment. Her appointment was renewed every two months. She was stationed at the Kiritimati Island Hospital. On 5 December 2006, the defendant terminated the plaintiff's appointment. The basis for her termination was that she had taken maternity leave which she was not entitled to. Secondly, her work performance was poor. She appealed to the Public Service Commission on 14 December 2006. After two hearings, one in South Tarawa and one in Kiritimati Island, the PSC decided on 26 October 2007 that the defendant should find a placement for the plaintiff at the Tungaru Central Hospital at Nawerewere in a position similar to the one she had held on temporary basis for many years at Kiritimati Island. It was not until 15 March 2010 that the defendant found a placement for the plaintiff similar to the one she held previously.

ISSUES
Basically there are only two main issues for the Court to determine in this case. The first is whether the defendant lawfully terminated the plaintiff's appointment and the second is whether she is entitled to damages, and if so, how much?

TERMINATION
There is no dispute that the plaintiff was terminated on 5 December 2006 by a letter bearing the same date. The reasons for her termination were: taking unauthorized maternity leave and work performance was poor. The termination was done pursuant to Clause C.4(iii) of the National Conditions of Service.

Clause C.4(iii) is in the following terms:

C.4 All terminations of appointment shall be subject to the approval of the PSC, except that:-

.................

(iii) The termination of temporary or Part Time appointments is at the discretion of the Senior Responsible Officers.

Pursuant to the above provisions, the power to terminate a temporary employee is vested in the Senior Responsible Officer. In the present case, the termination of the temporary employment of the plaintiff was done by the OIC Medical Kiritimati. There is no suggestion that the OIC did not have the power to terminate the temporary employment of the plaintiff.

ARGUMENTS
Much of the argument advanced on behalf of the plaintiff relates to the suggestion that since the plaintiff had been working for about seven years from May 1999 to October 2006, as a cleaner she must be regarded as a permanent employee. Against such a suggestion, however, one turns to the evidence to ascertain whether the plaintiff's employment can be said to be temporary or permanent.

The evidence of Tekaibeti Tarataake states that the plaintiff was first appointed as a temporary cleaner some time in 1999 for a 2 months period and had been continuously reappointed for every two months until 2006. He deposed to the fact that the plaintiff's initial letters of appointments could not be found. However, a copy of the plaintiff's letter of appointment in 2001 was located. It was in the following terms:

"I am pleased to advise you that have been offered a temporary employment within the Public Services on the following terms:

1. Date and Period of Employment 28/08/01-28/10/01
2. Designation Laboratory Cleaner
3. Division Kiritimati
4. Salary Scale L19
5. Salary in Employment $3252
6. Leave Rate NA
7. Allowances Dirt & Chemical
   

No other privileges will be attached to the appointment which may be terminated by one day notice on either date.

Subject to the limitation of paragraph one you will otherwise be subject to the National Condition of Services, other terms and rulings as may be promulgated from time to time".

The affidavit evidence from the Chairman of PSC, Teken Tokataake, reiterates that the plaintiff's appointment was temporary as a "Laboratory Cleaner" in the Ministry of Health and Medical Services, stationed at Kiritimati Island Hospital. The Chairman's evidence buttressed the evidence of Tekaibeti Tarataake that the plaintiff was on temporary appointment.

There is also the evidence from Mrs Baurina Iakobo produced before the PSC during the plaintiff's appeal that the plaintiff worked as a temporary Laboratory Cleaner when she (Mrs Iakobo) was recruited to fill the Cleaner's post on temporary basis some time in 2005.

The plaintiff's case is that she was recruited in mid 1999 to work as a Laboratory Cleaner in Kiritimati Island Hospital. She was recruited by her husband, Teikori Kantabu, who was the Acting Lab Technician in Kiritimati Island Hospital then. Her husband was also her supervisor. There was no letter of appointment issued. According to Mr Kantabu's affidavit evidence, the arrangements for the plaintiff to commence work were done by phone calls with the Director of the Tungaru Central Hospital (TCH), Mr Tebuka Toatu.

It is the plaintiff's case that her employment was permanent until her termination in December 2006. The basis for that claim is that the plaintiff had worked continuously as a Lab Cleaner for seven years, up to her termination. In other words, the plaintiff challenged her employment status for the period concerned as 'temporary' employee. She denied ever receiving any letter of appointment for the entire seven years.

I note from the evidence of Mr Kantabu that he never mentioned whether he recruited the plaintiff as a 'temporary' or permanent employee. He also never mentioned whether his consultation with the Director of TCH on the appointment of the plaintiff as a Lab Cleaner was on temporary or permanent basis. He denied ever receiving any letter of appointment for the plaintiff from TCH during his supervision of the plaintiff.

At the hearing before the PSC, much of the evidence pointed to the suggestion that the plaintiff's employment was on 'temporary' basis. That was so, despite the claim by the plaintiff that her appointment was permanent.

WHETHER THE PLAINTIFF'S APPOINTMENT WAS TEMPORARY
There was no evidence to show that the OIC of Kiritimati Island Hospital did not have the power to terminate the plaintiff's employment. Equally, there was no challenge to the OIC's power under the NCS C.4(iii) to terminate the plaintiff's employment. The plaintiff's argument against her termination and before the PSC was that she had been working for seven years as a Lab Cleaner and, therefore, should be regarded as a permanent employee. That being the case, she was entitled to all the privileges accorded to a permanent employee. The onus is on the plaintiff to establish her case on the balance of probabilities that her employment was on a permanent basis.

In my judgment, the whole tenor of the evidence overwhelmingly supports the defendant's argument that the plaintiff's appointment as a Lab Cleaner was temporary. The terms of the appointment were set out in one of her letters of appointment dated 20 September 2001. The fact that no copies of her other appointment letters were found did not alter the fact that she was on a temporary employment.

The PSC considered the plaintiff's appeal, holding on 12 January 2007 that although the plaintiff's appointment was temporary, she had a right of appeal to the PSC. The Commission concluded its hearing on 26 October 2007 and decided that the defendant

"should find a placement for Mrs Temeri Teikori at the Tungaru Central Hospital, Nawerewere, in a position similar to the one she held on temporary basis for many years at Christmas Island".

The Commission's decision was quite clear that the defendant was to find a placement for the plaintiff at the Nawerewere Hospital on temporary basis similar to the one she had held at Kiritimati Island Hospital. The word "temporary" was clearly spelled out in the PSC decision to reflect the nature of the plaintiff's appointment at Kiritimati Island as well as her new placement to be found for her at Nawerewere Hospital. The plaintiff deliberately omitted to include the word "temporary" when she referred to the PSC decision in her affidavits (see para 32 of the plaintiff's affidavit filed on 4 November 2011).

Despite the submissions by Counsel for the plaintiff that in its true nature, the plaintiff's employment contract was permanent, the whole tenor of the evidence suggests otherwise. Even the plaintiff herself and her husband who initially recruited her as a Lab Cleaner and who was supervisor until 2005, knew that the true nature of her employment was temporary. That is the true import of her evidence as stated in paragraphs 7 and 8 of her affidavit of 29 May 2013 which states:

"7. The terms of my employment were told to me by Teikori Kantabu, who employed me.

8. Teikori Kantabu told me to start working as a cleaner. He told me to work Monday to Friday. I knew that I should work between 8am and 4pm, even though Teikori Kantabu did not discuss this with me. He did not tell me how long I would be working in that position for. Teikori Kantabu told me that I would continue to work until my salary stops."
   

In 2001, during the period of supervision by Teikori Kantabu, the plaintiff was given the letter of Appointment, dated 20 September 2001 (referred to earlier) offering her temporary employment within the Public Service. That letter sets out the terms of the plaintiff's appointment.

Despite the denial by both the plaintiff and her then supervisor that they never received any letter of appointment from the defendant, I am satisfied that the letter of 20 September 2001 was sent to the plaintiff and that she received it. I accept Tarataake's evidence that the letter of 20 September 2001 provided the same terms as those of her previous and subsequent letters of appointment. They clearly show the nature of the plaintiff's appointment was temporary.

I am satisfied on the evidence before the Court, that the plaintiff's appointment as a Lab Cleaner at Kiritimati Island was on a temporary basis and I so find.

WAS THE TERMINATION UNLAWFUL?
The plaintiff claimed that the termination of her appointment was unlawful, as set out in her Statement of Claim. In basic terms, she claimed she was a permanent employee and therefore entitled to annual leave, maternity leave and other privileges accorded to a permanent employee. Consequently, she claimed that when the OIC terminated her employment, she was deprived of those entitlements and privileges.

Having found that the plaintiff's employment was temporary and that the OIC has power under NCS C.4(iii) to terminate the plaintiff, she has to establish that the OIC wrongly exercised his power in terminating her employment. That entails looking at the procedure applied and the reasons for her termination.

In his letter of 5 December 2006 terminating the plaintiff's employment, the OIC Kiritimati Island Hospital, Dr John Tekanene, referred to the plaintiff's unauthorized leave and poor work performance as the basis for terminating her employment. The recommendation to terminate the plaintiff's appointment as a Lab Cleaner was made by her immediate supervisor, Tekaibeti Tarataake, in 2006.

In so far as the reasons for terminating the plaintiff's employment, there was evidence to support the defendant's argument that the plaintiff took unauthorized maternity leave and had poor work performance. On appeal to the PSC, the Commission did not disturb the OIC's decision to terminate the plaintiff's employment. The plaintiff's termination therefore remained effective.

Then Ms Hadaway of Counsel for the plaintiff further contended that if the termination remains effective, it was wrongful because the plaintiff was dismissed without the requisite reasonable notice. Accepting that the letter of 20 September 2001 and all her letters of appointment, the terms of her temporary employment contract state that the appointment "may be terminated by one day notice" by either party. To accept the plaintiff's argument that the requisite notice in this case is "reasonable notice" would, in my view, be a modification of the notice period stated in the plaintiff's terms of employment. Such a change in the terms of employment ought not to be allowed unless both parties agreed to it.

In the present case, the plaintiff's employment could be terminated on one day's notice under the terms of her appointment. The letter of termination was dated 5 December 2006 and effective from the same date. The plaintiff said that she received the letter on 8 December 2006 and replied to it on 14 December 2006.

In terms of her employment contract, the plaintiff was entitled to a day's notice of termination. In this case, the plaintiff's termination was with immediate effect on 5 December 2006. Strictly speaking the letter of termination should take effect on 6 December 2006 instead of 5 December 2006. However, in my view, this difference has no adverse effect on the plaintiff who continued to receive her pay, including for that one day, up to 7 March 2007.

In my judgment, the termination of the plaintiff's employment was not unlawful. She is therefore not entitled to damages for wrongful dismissal.

COUNTERCLAIM
The defendant counter-claims for wages paid to the plaintiff from 8 December 2006 to 2 March 2007, totalling $1,118.25. The plaintiff argues that she was entitled to keep the wages paid to her during the period because the PSC was reviewing the plaintiff's case then. Secondly, the plaintiff argues that the defendant voluntarily paid the wages to the plaintiff and so she was entitled to keep them.

In my view, the PSC dealt with the plaintiff's appeal and confirmed the termination. The plaintiff was therefore terminated from 5 December 2006 until she was given new placement in Nawerewere hospital on 15 March 2010. She was not entitled to receive any wages during the period from 6 December 2006 to 15 March 2010. Thus any wages she received during that period should be repaid to the defendant and it is so ordered.

TWO FURTHER POINTS
I wish to point out two other points raised in this case. First, it is a fallacy to regard the plaintiff's placement at Nawerewere as a reinstatement of the plaintiff back to her old job. The old job of the plaintiff as a Lab Cleaner at Kiritimati Island had ended when she was terminated. The termination was confirmed by the PSC.

The PSC requested the defendant to find a placement for the plaintiff in Nawerewere Hospital as a gesture of grace extended to her in view of her long service in the Hospital as a cleaner. The placement at Nawerewere was a completely new temporary appointment.

Secondly, the point raised by the defendant on the justiciability of the PSC decision. That question has not arisen in this case since the plaintiff has not challenged the PSC decision.

CONCLUSION
Having considered this matter most anxiously, and in the light of the evidence before the Court, the Court finds that the plaintiff's claim cannot succeed and it is dismissed.

The Court finds that the defendant's counter-claim succeeds and judgment is entered for the defendant on their counter-claim in the sum of $1,118.25.

Each party to bear its own costs in this case.

Dated the 25th day of April 2014

SIR JOHN MURIA
Chief Justice