Taamoa v Capelle & Partner [2008] NRSC 12; Civil Case No 4 of 2008 (20 December 2008)

IN THE SUPREME COURT OF NAURU

Civil case 4/2008

BETWEEN:

TETAA TAAMOA & ANOR
Plaintiff

AND:

CAPELLE & PARTNER
Defendant

Mr. Nimes for Plaintiff
Mr. Leo Keke for Defendant

Date of Hearing: 20^th December, 2008

JUDGMENT

I have already given judgment for the plaintiffs for $842.00 with costs to be taxed. I now publish my reasons.

The plaintiffs, husband and wife, are migrant workers from Kiribati. The female plaintiff worker Nei Tetaa Taamoa, has been in Nauru since 1998, the male plaintiff, Tiaon Tetaa since 2002. Both were employed as shop assistants by the defendant, a company operating the big store in Nauru. The plaintiffs were paid weekly, Tetaa $120.00, Tiaon $144.00. No written Contract. I conclude that each had a weekly contract of employment, therefore terminable on a weeks notice or a weeks’ salary in lieu of notice.

Both were summarily dismissed after an incident involving only Tetaa. Some days after the dismissal, the department wrote a letter:

"Re: Termination of Service

This is to inform you that, regarding your case for Alpine issue on 08February. According to the report from Chief Security (Ken Agedu) on duty on that incident and your explanation and admitted that you issued extra 7 sleeves of Alpine to the Chinese customer from the warehouse office by mistake. After the Management examined your case and found that your mistake was unacceptable due to the strong evidence against you. Hence, the Management finally made a decision that your "Service is Terminated" with immediate effect last 15February.

As this, Capelle & Partner as you and your husband (Tiaon) employer and sponsored your working visas to Nauru has no alternative to deport both of you until next week Friday 29/02 flight to Tarawa through Our Airline"

The nature of "the strong evidence" has never been disclosed.

Tetaa had served a Chinese man – name unknown -from the bulk store. He bought 7 sleeves of cigarettes and walked out of the bulk store past the security officer – who should have checked the goods he was taking away but who was chatting to someone else– and to his vehicle. In her evidence Tetaa said she realized that she had made a mistake. She had made out an invoice for 7 sleeves but inadvertently she had packed up two separate lots of 7 sleeves and the Chinese man had taken both lots -twice as many as he should have. She ran after the Chinese man who was called back to the Security Officer. He had two lots of seven sleeves – one lot was returned.

Tetaa has been consistent is asserting that she simply made the mistake and had no dishonest intent. She recognized the Chinese man’s face and that was all; she had no reason to want to help him the goods he hadn’t paid for.

After a few days consideration by Management, she was dismissed. No reason given to her. Four days letter the male plaintiff was also dismissed. The store policy was if a person be dismissed, the spouse goes too. According to Tiaon Mr. Crispin Mariano, the Manager, said to him:

....."your wife is sacked so you are sacked too,." Tiaon had nothing wrong at all – except to be married to his wife.

The plaintiffs have sued for wrongful dismissal.

As for Tiaon defendant could in any case dismiss him on a weeks notice or on payment for a weeks wages anew. It is agreed that Tiaon’s weekly wage was a $144.00. He was wrongfully dismissed. He is entitled to $144.00.

What of Tetaa? She had made no attempt to conceal any of the sleeves. Tetaa must have known that, had the Security man, Ken Agedu, been more alert. He would notice the customer had twice as many cigarettes as the invoice showed. What had happened would have been discovered at once. If it were dishonesty it was a fully hearty way of going about it.

Beyond the mere balance of probability so I find Tetaa not to be guilty of any wrong doing unless mere carelessness be regarded as wrong doing which it is not. It was a mistake. She had said immediately to Ken, "I didn’t do my job". No more than a careless mistake; not justification for instant dismissal. Tetaa was wrongfully dismissed.

That being so she is entitled to a weeks wages in year of notice. Her weekly wage was $120.00.

The plaintiffs have savings with the defendant. The defendant, having dismissed the plaintiffs, out of their savings bought them air-tickets back to Kiribati. The tickets cost $578.00. The plaintiffs have not left Nauru; the tickets have not being used. Tiaon after some months out of work now has another job. The plaintiffs, being guilty of no wrong doing meriting deportation, should not have to bear the loss of the costs of tickets. The defendant must refund to them the $578.00.

The total which the defendant must pay for the plaintiffs is $842.00.

ROBIN MILLHOUSE QC
CHIEF JUSTICE