Teotiraoi v The Kiribati Provident Fund [2023] KIHC 58; Land Appeal 110 of 2014 (25 July 2023)

IN THE HIGH COURT OF KIRIBATI TE KABOWI AE RIETATA I KIRIBATI

High Court Civil Case 110 of 2014

BETWEEN	AOTIU TEOTIRAOI Plaintiff
AND	THE KIRIBATI PROVIDENT FUND Defendant

Hearing:	21 December 2022
Appearances:	Ms Botika Maitinnara for the Plaintiff Ms Taaira Timeon for the Defendant
Judgment:	25 July 2023

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JUDGMENT
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1. The Plaintiff sued the Defendant for unpaid wages from the date of her retirement until December 2014. She further sued for damages including from end of December 2014 until repatriation, repatriation costs to Tabiteuea Meang, retirement bonus of $3,815.00 and costs.
2. It was not disputed that the Plaintiff was employed by the Defendant as the ground floor cleaner being confirmed to such position on 16 November 1998.
3. The Plaintiff continued working temporarily with the Defendant for one more week after her retirement until a new cleaner was appointed. There was a dispute on the actual retirement date and will be discussed further in the judgment.
4. On January 2010, the Plaintiff wrote to the Defendant about her retirement entitlements including her repatriation. Until date, she has not been repatriated thus her lawsuit against the Defendant.
5. The core issue to be determined by this court, is whether the Defendant is obliged to repatriate the Plaintiff and if so, is the Defendant liable to pay the Plaintiff wages since her retirement until repatriation?
6. In her evidence, the Plaintiff adduced that she filed her case with the court on 5 May 2015 after retiring on 29 December 2009. She wrote letters and also assisted by former MP Teburoro Tito about her repatriation shown by tendered copies of letters dated January 2010 by the Plaintiff, 2^nd May 2013 by the Plaintiff, 6 November 2013 by MP Teburoro Tito, 7 January 2014 by MP Teburoro Tito, 10 February 2014 by MP Teburoro Tito, and 9 May 2014 by the Plainiff. With respect to her retirement bonus, she said that she did not receive the $3000 as $1800 was withheld by the Defendant to clear her loan.
7. In her affidavit evidence, no response was ever made but during cross examination, she said that she received two tickets for her and husband to return to Tabiteuea Meang. The Plaintiff elaborated in her affidavit that she has and continue to face great hardship living on Tarawa.
8. During re-examination, the Plaintiff said that her retirement bonus should be $5000 not $3000 and claiming balance of $3815.30.
9. From the defence side, the only witness adducing evidence is Bwania Timaio, currently working with the Defendant as Assistant to the Members Services Manager in charge with recovery. She said that she was familiar with the Plaintiff’s case as she was working when Eddie Karoua (former person in charge with the Plaintiff’s case). She endorsed as true all that was said by Eddie Karoua (affidavit evidence).
10. In her cross examination, she confirmed that she could access staff’s files and deal with all staff related issues including repatriation.
11. The defence adduced that the Plaintiff ceased working, upon her retirement, with the Defendant on 31 December 2008. This was officiated with a letter sent to the Plaintiff on 29 December 2008 but the date was incorrect dating it in 2009. The Plaintiff’s birth certificate shows that she was born on 27 December 1958 and that she would turn 50 years old on 27 December 2008 not 2009.
12. This court agrees with the Defendant that the Plaintiff retired on 29 December 2008 not in 2009 and the letter given to her communicating her retirement was supposed to be dated in 2009 not 2008 as adduced by the Defendant.
13. Further evidence by the Defendant shows that her retirement bonus was paid on payment voucher 3963/08 dated 31 December 2008 (marked annexure B) confirming her retirement was in 2008 and not 2009. It was in the amount of $3000 but given her unpaid staff loan of $1815.00, the amount was deducted from her bonus and she was given $1,184.50.
14. The $5000 retirement bonus was decided by the Defendant’s Board on 1 January 2009 when the Plaintiff was no longer employed which this court accepts as discussed earlier therefore, the Plaintiff’s application for the retirement bonus should fail.
15. Another crucial evidence was the receipt of the Plaintiff’s letter by the Defendant which was adduced in evidence to be only once on 10 January 2010 which matched with the letter sent by the Plaintiff to the Defendant. What about the following letters? The evidence of the Plaintiff shows that she had sent more than three letters to the Defendant. This court agrees that the Defendant was made aware in 2010 of the Plaintiff’s intention to be repatriated to her home island of Tabiteuea Meang.
16. It is also clear that the two tickets given to the Plaintiff by the Defendant were issued on 1 February 2019 but the Plaintiff chose not to travel.
17. The Plaintiff’s confirmation letter shows that her home island is Tabiteuea Meang and that leave together with retirement benefits are dictated by the Defendant’s condition of service.
18. The condition of service set out that the Plaintiff should apply for repatriation within three months from the last day of her service or employment.
19. In light of the core issue mentioned earlier and evidences from both parties, this court finds that the Defendant is obliged to repatriate the Plaintiff and her family to her home island of Tabiteuea Meang after the completion of her employment. This was not done because the Plaintiff never applied for such until 2010 when the Defendant received her letter. It is beyond the 3 months set out in the Defendant’s Conditions of Service Condition H5 clarifying that,
    

“an employee travelling on retirement, and on completion of contract, is entitled to transport together with his/her spouse and all of his children under the ages of 18 years and not married from place of duty to his/her home island in the class appropriate to his/her post provided passage is taken within three months from the last day of service.”

20. This court accept the Defendant’s interpretation of the above condition to mean that the Plaintiff should apply to take the entitlement within three months from the last day of her service to the Defendant. This was not done as discussed earlier.
21. However, the Defendant provided air tickets for the Plaintiff and her husband in February 2019 but the Plaintiff did not travel as she wanted her children to also be repatriated. The Defendant was more than generous to issue the two tickets to the Plaintiff even though she did not comply with the repatriation application policy setting out that the retirement travel passage should be taken within three months from the last day of service.
22. This court finds that the Plaintiff has not complied with the provision of the Defendant’s Condition of Service to apply within three months after the last day of her employment with the Defendant and therefore her claim for repatriation should also fail.
    
23. This court make the following orders:
    
1. The Plaintiff’s claim for repatriation and retirement bonus are not proved on the balance of probability and therefore dismissed;
2. In light of the above, the other claims cannot stand and also dismissed;
3. The Plaintiff’s case against the Defendant is dismissed in its entirety;
4. In light of the circumstances of this case and the circumstance of the Plaintiff, there is no order on cost.

THE HON. ABUERA URUAABA,
COMMISSIONER OF THE HIGH COURT