IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 9 of 2023

BETWEEN:	TEKAUNTA BURENTAU
	Plaintiff

AND:	KIRIBATI PORTS AUTHORITY	
Defendant

Date of Hearing:		     	6 March, 26 March & 2 April (w/sub)
Date of Judgment:			5 May 2025

Appearances:		Ms. Eweata Maata for the Plaintiff
                                            Ms. Elsie Karakaua for the Defendant

JUDGMENT

Introduction

1.	The plaintiff was employed by the defendant as an Engineering Mechanic. On 11 November 2015, the plaintiff received an offer for a position of Engineering Superintendent on a salary scale of Grade 5-4/3, effective November 2, 2015. The plaintiff was put on probation before confirmation. The position was subject to the company’s Conditions of Service.

2.	After nearly four years, the plaintiff assumed he had been confirmed in that position until he received a letter from the Chief Executive Officer on 8 August 2019 informing him that he was unsuitable for the post of Engineering Superintendent.

3.	By writ of summons, the plaintiff sues the defendant for breaching his duty of care by failing to comply with the conditions outlined in the plaintiff’s appointment letter dated 11 November 2015 and the KPA Conditions of Service 2013, which required conducting an appraisal to determine the plaintiff's confirmation as Engineering Superintendent. As a result of this breach, the plaintiff was not confirmed and was demoted. The plaintiff claims he suffered from stress, feeling down, ashamed, and greatly humiliated due to his demotion. The plaintiff seeks damages.  

Issues

4.	The parties submit the issues as follows;
-	Whether or not the defendant was negligent in failing to confirm the appointment of the plaintiff as Engineering Superintendent,
-	Was the delay reasonable with clause B11 of the KPA Conditions of Service applicable at the time?
-	Was the appraisal of the plaintiff required for the plaintiff’s promotion to a permanent post?
-	Was the claim statute-barred by virtue of the Limitation Act?
-	Was the plaintiff entitled to damages?

Submission and Analysis

5.	The plaintiff’s case is that the defendant, as an employer, has a duty of care to provide a safe workplace to prevent foreseeable physical and psychological harm to its employees, following the leading case of Donoghue v Stevenson [1932] A.C 562, which established the neighbour principle that one must take reasonable care not to injure one’s neighbour. The plaintiff describes his relationship with the defendant as that of neighbors, and the defendant did not contest the existence of this relationship. Additionally, there is no disagreement about whether the defendant owed a duty of care to the plaintiff in this particular situation or what the appropriate standard of care should be. Without these clarifications, these matters will not be considered issues of concern or dispute. The court proceeding will focus only on the issues raised by both parties as listed in paragraph 4 above.
 
6.	The plaintiff submits that the defendant owes him a duty to ensure compliance with the conditions stated in the appointment letter he received regarding the offer for the Engineering Superintendent position and Condition B11 of the Conditions of Service 2013. This court accepts this single issue for determination.   

7.	The offer letter, in paragraph 7, says the following;
“At the end of the six-month probation, the General Manager, through the Human Resource Manager, will advise you in writing that you have completed your probationary period, and that you are fit or otherwise to be confirmed as a permanent employee of the Authority.”

8.	Condition B11 of the Conditions of Service 2013 edition states as follows;
“One month before an employee is due to complete his /her probationary period, the Human Resource Officer, on behalf of the General Manager, will ask for a special performance report for that employee from the concerned Division Manager. If the Division Manager considers that the employee is in all respects suitable for permanent admission to the permanent establishment, the Human Resource Officer will advise the employee accordingly, with a copy to the Finance Manager.”

9.	On the other hand, the defendant submits Condition B10, quoted below;
“An employee appointed to the Authority will not be admitted to the permanent establishment until he/she has completed a minimum of six months satisfactory service on probation and has reached the age of eighteen years and has passed any required examination.“

10.	The issue the parties raise is whether the probationary period stops at six or at least six months. The plaintiff submits that the probationary period stops at 6 months. On the other hand, the defendant argues it should be at least 6 months. 

11.	The Division Manager prepared a special performance report on 12 September 2016, four months after the six-month period had lapsed. However, the report was incomplete because neither the Division Manager nor the Human Resource Manager signed it. Paragraph 7 of the plaintiff’s appointment letter indicated that the Human Resource Manager must advise the plaintiff of his confirmation status on behalf of the General Manager. The confirmation was left unattended for nearly four years, leading the plaintiff to assume that there was no problem with him holding the position of Engineering Superintendent. Sometime in 2019, the plaintiff wrote a letter to the CEO to claim his charge allowance when he executed the role of Engineering Manager, after the Engineering Manager was laid off sometime in 2017. He was surprised when he was later informed by a letter dated 8 August 2019 that he was unfit for the position of Engineering Superintendent. He had continued to receive a salary at the Engineering Superintendent rate for nearly four years. The plaintiff believed the letter informing him of his unsuitability was a form of retaliation from the defendant. The plaintiff submits that he felt humiliated and embarrassed by the defendant’s action. He could not face his colleagues, as he had been their supervisor for a long time, and due to the demotion, he would return to a lower position.

12.	The defendant admits there was a delay in assessing the plaintiff because the special performance report prepared by his former supervisor on 12 September 2016 was incomplete. The defendant conducted a complete and proper appraisal for the plaintiff in August 2019, which resulted in the plaintiff failing to meet the benchmark. This new appraisal is known to the defendant as the 360 appraisal, where the employee assessed himself and was also evaluated by his peers and the Engineering Manager. He received a score of 39.4%, which was below the benchmark of 75%. According to the defendant, the delay of almost four years in assessing the plaintiff still falls within the meaning of Condition B10, which states that an employee appointed to the Authority will not be made permanent until he has served a minimum of six months satisfactory service on probation.

13.	The parties raised Conditions B10 and B11 and paragraph 7 of the Offer letter as relevant. Having looked at the Offer letter, I believe paragraph 1 is also relevant, which says the following;

“I am pleased to inform you that the General Manager, acting on the resolutions of the Board in its special meeting #20/2015S held on Friday 6 November 2015, has approved that you be offered the permanent appointment with the Authority as an Engineering Superidentant on the salary scale of Grade 5-4/3 on probation for six months effective from Monday 2 November 2015.”

14.	B10 requires a minimum of six months on probation before confirmation to a permanent post. B11 requires that an assessment of suitability for confirmation be conducted one month before the probationary period ends. Paragraph one of the Offer letter (quoted above) states that the plaintiff was put on probation for six months, effective 2 November 2015. Paragraph seven of the Offer letter confirms that the probation period should last six months by stating that at the end of the six-month probation, the plaintiff will be advised by the Human Resource Manager that he has completed his probationary period and whether he is fit to be confirmed to the position of Engineering Superintendent or not. Reading these Conditions and Paragraphs together, it is clear that the intended probationary period is six months, effective from 2 November 2015. 

15.	The defendant argues that the plaintiff’s claim was statute-barred. The offer letter was dated 11 November 2015, and therefore, after six months, the cause of action arose. The plaintiff instituted his action on 7 February 2023, which is more than six years after the cause of action arose, pursuant to section 4 (1) of the Limitation Act 2004. For ease of reference, section 4 is quoted below;
“A-ACTIONS OF CONTRACT AND TORT AND CERTAIN ACTIONS

Limitation of actions of contracts and tort, and certain other actions

4.(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-
(a) actions founded on simple contract or on tort;…”

16.	In response, the plaintiff states that he was only affected on 8 August 2019, when he was informed by letter that he was not fit to be confirmed as Engineering Superintendent. That’s when the cause of action arose, and the case was filed within the six years. All along, he had believed that he had been confirmed in his position since he had executed the roles and duties of an Engineering Superintendent for nearly four years since his appointment.

17.	I do not accept the defendant’s argument that the claim is out of time. The plaintiff is correct in asserting that the cause of action accrued on August 8, 2019, when he was informed that he was not fit for the position of Engineering Superintendent. Prior to this date, the plaintiff assumed the role of Engineering Superintendent and received the corresponding salary for this position. This case was filed within the 6-year timeframe, thus it was not time-barred.

18.	Was the appraisal required for the plaintiff's confirmation to the post of Engineering Superintendent? It is required pursuant to the appointment letter and the Conditions of Service, as stated in B11. The appraisal should have been conducted one month before the probationary period ended, but nothing was done until August 2019. As I have said in paragraph 14 above, the probationary period is only six months, effective 2 November 2015. Therefore, the appraisal should have been conducted at the start of the fifth month, on 2 April 2016. 

19.	Both parties agree that the first appraisal on 12 September 2016 was incomplete; I accept this fact. The appraisal conducted in August 2019 was completed and showed that the plaintiff failed to meet the benchmark of 75%. Was the delay in conducting this appraisal reasonable? The facts indicate that the plaintiff occupied the position of Engineering Superintendent for nearly four years following his appointment, at the assigned salary rate for this position. The proper appraisal was delayed because his supervisor left the company for training and did not return. A new supervisor joined on 1 January 2017, yet the appraisal was conducted only two years later, in August 2019. I do not find the defendant’s reason for the delay to be reasonable. They are responsible for conducting the appraisal; they could have performed the proper assessment one month before the end of the six-month probationary period, soon after that period, or immediately after hiring the new supervisor in 2017, but they failed to do so without providing a valid reason to this court. 

20.	The Fijian case referred to by the plaintiff, The Attorney General of Fiji v Mohammed Imam Shah Civil Appeal No.19 of 1986, ruled that the silence of 6 months after the probationary period expired implied confirmation to the post.  The plaintiff argued, and I agree, that the same undertaking should be applied to his case. After six months of work, the defendant has waived the requirement of appraising the plaintiff. The plaintiff did not know that the first appraisal in 2016 was incomplete until the second appraisal was conducted in 2019. The appraisal done in August 2019 must not be counted against the plaintiff. Although there is a requirement to conduct an appraisal, the delay is unreasonable and must not be used against the plaintiff who has assumed the role for more than four years.

21.	It would be unjust and unfair to believe that a probationary period has no end after six months. The Conditions of Service and Offer letter put the plaintiff on probation for only six months and require the defendant to conduct the appraisal one month before the conclusion of the six-month probationary period. 

Outcome

22.	The case revolves around a breach of duty of care. Both parties concurred on the primary issue: whether the defendant failed to fulfill his duty of care by not evaluating the plaintiff within a stipulated timeframe regarding his confirmation in his role of Engineering Superintendent, as stated in the offer letter and Conditions of Service.

23.	In light of the evidence and submissions from both parties, the case against the defendant is established on the balance of probabilities.

24.	The defendant is liable for breaching his duty of care to the plaintiff by failing to evaluate him to determine his suitability for the permanent position of Engineering Superintendent at the relevant time, after the six-month probationary period had ended.

25.	The defendant's treatment of the plaintiff, by offering him the position of Engineering Superintendent and allowing him to perform the roles and duties of this position for nearly four years on the salary scale assigned to this post, provides reasonable grounds for the plaintiff to believe he is secure in his position.

26.	The process that led to the plaintiff’s non-confirmation was unjust and unlawful, breaching the duty of care and causing the plaintiff to suffer damages from stress, shame, and significant humiliation due to his demotion, making it difficult to face his work colleagues.

27.	Damages will be assessed at a later date to be determined by the parties at the pre-trial conference.

28.	Cost to the plaintiff, to be taxed or agreed.

Order Accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice