Teitiba v Commissioner of Police [2020] KIHC 35; Civil Case 24 of 2016 (28 October 2020)

IN THE HIGH COURT OF KIRIBATI 2019

CIVIL CASE NO. 24 OF 2016

[KIRION BIIRIM TEITIBA PLAINTIFF
[
BETWEEN [AND
[
[ATTORNEY-GENERAL IN RESPECT OF
[COMMISSIONER OF POLICE DEFENDANT

Before: The Hon Chief Justice Sir John Muria

16 June 2020

Ms Botika Maitinnara for Plaintiff
Ms Kanrooti Aukitino for Defendant

JUDGMENT

Muria, CJ: By a writ of summons dated 2 May 2016 and issued out of the High Court on 9 May 2016, the plaintiff claims against the defendant unpaid wages for 26 April to 6 May 2015 with interest at 5% per annum, cost of repatriation including maintenance cost while awaiting repatriation, damages for failure to make prompt arrangements for repatriation, interest of 5% on damages and maintenance cost awarded and costs of the action. The defendant opposes the plaintiff’s claim.

Brief background

2. The plaintiff is a retired police officer employed by the Government of Kiribati in the Police Service for 34 years. He served in a number of police stations in Kiribati, until his retirement on 6 May 2015. His last posting was on Kiritimati Island.

3. Although retired on 6 May 2015, the plaintiff remained in Kiritimati Island until 15 March 2016 when he and his wife boarded a ship for South Tarawa. They arrived in South Tarawa on 22 March 2016.

4. The plaintiff’s home island is Marakei. The plaintiff and his wife are still in South Tarawa. The plaintiff has not yet been repatriated to his home island.

Issues

5. The parties have agreed to five (5) issues for the Court to determine. The issues are:

(a) whether the defendant had paid the plaintiff’s wages for period 26 April to 6 May 2015.

(b) whether the plaintiff is entitled to one month salary in lieu of notice.

(c) whether the plaintiff’s claim for repatriation was time barred under the National Conditions of Service.

(d) whether the defendant had carried out its duty to repatriate the plaintiff.

(e) if the plaintiff has not been repatriated, is he entitled to damages.

Determination of Issues on the Evidence

6. The Court will deal with each of the issues in the light of the evidence before the Court. Both parties called one (1) witness each. The plaintiff gave evidence on his own behalf while the defendant called Ritema Tueti.

(a) Whether the defendant had paid the plaintiff’s wages for
26 April-6 May 2015

7. In his defence filed on 1 July 2016, the Commissioner of Police denied owing the plaintiff unpaid wages for the period 26 April to
6 May 2015. However, in the light of the evidence of Ritema Tueti, it has been confirmed that the plaintiff had not been paid his wages for the period 26 April to 10 July 2015. The 10^th July 2015 was the date when the plaintiff officially ended his service with the Police since he continued working from 6 May utilizing his remaining leave.

8. At the trial, Counsel for the defendant, on instructions, conceded the issue of unpaid wages. On the evidence therefore, the plaintiff succeeds on his claim for unpaid wages for the period, not only from
26 April to 6 May, but also up to 10 July 2015.

(b) One (1) month’s pay in lieu of notice

9. The plaintiff’s claim is for one (1) month’s pay in lieu of notice upon his retirement on 6 May 2015. The defendant’s case is that the plaintiff is not entitled to one month’s pay in lieu of notice since his employment was not terminated but rather it came to an end naturally upon his retirement. Counsel for the defendant submitted that payment on lieu of notice only applies to termination of employment.

10. I feel there is force in the defendant’s submission. The plaintiff in this case reached retirement age on 6 May 2015 and so on that date he officially ended his employment with the Police Service. There is no requirement on the part of the defendant to give notice or payment in lieu of notice to the plaintiff upon his retirement. In fact, if there was to be a notice, it should have come from the plaintiff, notifying his employer (defendant) that he would be retiring on 6 May 2015 having reached the compulsory retirement age. The defendant did not insist on reasonable notice to be given by the plaintiff before retirement, but simply allowed the employee to continue working until he reached retirement age.

11. I need only add that retirement is one of the two ways in which an employee instigates the termination of his or her employment with the employer. The other is by resignation. As such the requirement of notice of termination of employment also applies on the part of the employee to give. The length of such notice can be found in section 102 of the Employment and Industrial Relations Code 2015.

12. Having said all that, in this case, I find that the defendant has no obligation in law to give notice or pay in lieu of notice to the plaintiff when he retired on 6 May 2015, ending his employment with the defendant.

13. It is suggested, however, that the plaintiff continued working until 10 July 2015 and as such he is entitled to notice or pay in lieu of notice. The evidence does not show that the plaintiff was given an appointment on contract, temporary or otherwise, to continue working after his retirement as happened in Mikaere Aree –v- Attorney-General in respect of Commissioner of Police [2011] KIHC 27; Civil Case 128 of 2010
(20 May 2011). The evidence is that the plaintiff was simply allowed to exhaust his remaining leave in office until 10 July 2015. As the plaintiff was not on any contract of employment to continue in employment after 6 May 2015, he is not entitled to notice pay in this case.

(c) Whether claim for repatriation time barred

14. There is no dispute that the defendant has the obligation to repatriate the plaintiff and his family back to their home island, Marakei. The defendant had paid for the plaintiff and his family to travel from Kiritimati Island to South Tarawa. The defendant’s case is that they paid for the repatriation of the plaintiff and his family from Kiritimati Island to Tarawa. The defendant is said to have been willing to pay for the repatriation of the plaintiff and his family from Tarawa to Marakei but that the plaintiff was unwilling yet to travel to Marakei as he had some personal mattes to attend to in South Tarawa. Counsel for the defendant, therefore, submitted that the plaintiff has forfeited his entitlement to be repatriated to Marakei.

15. I think the defendant’s argument is self-defeating. Having agreed that by law, the defendant is obliged to repatriate the plaintiff and his family to Marakei, the defendant has now reneged on his obligation. The fact that the plaintiff has indicated that he has other personal matters to deal with first in Tarawa before he could travel to Marakei does not take away the legal obligation of the defendant to repatriate the plaintiff to his home island after completion of service with the Police Service.

16. As I see it, there are only two ways in which the defendant can be said to be relieved of his obligation to repatriate the plaintiff to his home island. First, if the plaintiff expressly indicates to the defendant that he does not wish to be repatriated back to his home island, then he must be taken to have forfeited his entitlement for repatriation. Secondly, if the plaintiff fails to avail himself of his entitlement to be repatriated within six months (H. 12 National Conditions of Service) then the plaintiff loses his entitlement.

17. Has the plaintiff forfeited his entitlement to be repatriated in this case? On the evidence before the Court and on the admission by the defendant, it is obvious to the Court that the plaintiff has not forfeited his right/entitlement to be repatriated back to his home island, Marakei. The process of repatriation had already commenced when the defendant paid the repatriation expenses for the plaintiff and his family from Kiritimati Island to Tarawa. The repatriation process is yet to be completed for the second leg of the repatriation journey from Tarawa to Marakei.

18. There can be no question in this case that the plaintiff had already availed himself of his entitlement within six months as required and the defendant had partially fulfilled his obligation for the plaintiff’s repatriation from Kiritimati Island to Tarawa. The defendant must complete his obligation for the repatriation process.

(d) Whether defendant had carried out his duty to repatriate the plaintiff

19. The answer is that the defendant had partly carried out his duty to repatriate the plaintiff. The defendant is yet to completely fulfill his obligation by continuing the repatriation process from Tarawa to Marakei.

(e) If plaintiff not repatriated, is he entitled to damages

20. The Court, having found and the defendant having agreed that it has the obligation to repatriate the plaintiff and his family back to their home island of Marakei, the defendant is obliged to fulfill his obligation to repatriate them to Marakei. The consequence of not fulfilling that obligation would entitle the plaintiff to claim damages against the defendant.

Conclusion

21. On the evidence before the Court and in the light of what I have stated in this judgment, I find that the plaintiff has succeeded in his claim against the defendant in this case except on the claim for payment in lieu of notice. There will be judgment for the plaintiff and the terms of the Order of the Court are:

ORDER:

1. Judgment for the plaintiff for unpaid wages for period from
   26 April to 10 July 2015.
   
2. The plaintiff’s claim for repatriation is not time-barred.
   
3. The defendant shall complete the repatriation process to have the plaintiff and his family repatriated to their home island Marakei.
   
4. The plaintiff’s claim for one (1) month’s pay in lieu of notice is rejected.
   
5. There will be interest at 5% per annum on the amount of unpaid wages from the date of judgment until paid in full.
   

6. Costs to the plaintiff.

Dated the 28^th day of October 2020

SIR JOHN MURIA
Chief Justice