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Beia v Attorney General [2007] KIHC 125; High Court Civil Case 84 of 2007 (1 August 2007)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 84 of 2007

BETWEEN:

BUARO BEIA
Plaintiff

AND:

ATTORNEY GENERAL in respect of
Plant & Vehicle Unit
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Mr Monoo Mweretaka

Date of Hearing: 1 August 2007

JUDGMENT

The plaintiff worked for the Plant and Vehicle Unit. He was a member of the BKATM Union.

The Statement of Facts agreed by counsel and handed to me at the beginning of the hearing:-

1. The plaintiff was employed by the defendant from May 2001.
   
2. The plaintiff was employed on a temporary basis until 25 June 2003 when he was employed on a one year contract.
   
3. When the contract of employment expired he was re-employed as a temporary employee until 31/12/05 when he received a letter dated 09/12/05 telling him that he was being laid off due to a reduction in the number of temporary staff which was necessary because of the financial problems being faced by the PVU. The letter was headed "Termination of Temporary Employment".
   
4. The plaintiff had been employed continuously since 2001 by the defendant.
   

The Statement finished:-

5. The issue now is whether or not the plaintiff is entitled to the benefit set out in Appendix CI in the National Conditions of Service.
   

During the course of discussion with counsel (there was no evidence) it was further agreed that the plaintiff is now aged 48 and worked at least 36½ hours a week.

By consent I received two letters:-

The first letter:

The second letter:

The relevant extracts from the National Conditions of Service (3rd edition 1996):-

Temporary Appointments

B.2 Secretaries and Managers of Statutory Bodies may make appointments on temporary terms for period up to 2 months without reference to the Public Service Commission. Application for extension beyond 2 months must be submitted to the Public Service Commission.

Recruitment of Temporary appointees shall be conducted through the National Employment Register.

------------

Temporary Appointment

B.19 A Senior Responsible Officer is authorized to make an appointment on temporary terms without reference to the Public Service Commission for period of up to two months ......

SAMPLE REDUNDANCY AGREEMENT

A PROCEDURAL AGREEMENT ON REDUNDANCY

BETWEEN THE GOVERNMENT OF KIRIBATI

AND THE BKATM UNION

1. Intention ......
   
   • (b) The entitlements of an unestablished employee who is laid off through redundancy are specified in the agreement .......
     
2. Eligibility for redundancy treatment
   

An unestablished employee on hourly rates of pay as a classified worker whose continuous service with the Government exceeds six months, who is 18 years of age or over but under 50 years and who works at least 36 ½ hours a week is eligible for the benefits prescribed by the Agreement. Benefits become due if he has been laid off because the need for the kind of work which he is employed to do has ceased or diminished through discontinuation of services, reorganization, completion of projects and changes in methods of work or operation of service.....

It was agreed that the plaintiff was laid off for reasons covered by the second sentence of B.

The terms "unestablished employee" and "temporary employee" are nowhere defined. Counsel agreed they are interchangeable. They must mean an employee who is not either a permanent employee or an employee on contract.

The plaintiff was employed by the PVU continuously from May 2001 to
30 December 2005. After the one year contract expired in June 2004 he continued in the same employment. Every two months or so (the letters did not come regularly or punctually) he would receive a letter like the letter of 29/09/05. It will be noted that that letter extended his employment from "18/9/05 – 18/11/05", not from its date. He did not receive another letter on or after 18/11/05. What he did receive (at the New Years Eve party) was the letter dated 09/12/05. As he had no letter covering his employment from 18/11/05 to 30/12/05 the basis of his employment in that six weeks is not clear.

Mr Berina submitted (and Mr Mweretaka did not demur) that these two monthly letters were simply a way of getting round the requirement of NCS B2: far easier for the PVU to write letters every two months or so than have to go through the procedure in B2.

Mr Berina argued that whatever had been the legal basis for his employment the plaintiff had worked continuously for the PVU for more than four and a half years: more than the six month set out in paragraph B of the Sample Redundancy Agreement. He was an "unestablished employee" and is entitled to the benefits of the Redundancy Agreement.

It is difficult to argue against this (and Mr Mweretaka did not put a counter argument although I note paragraphs 2, 3 and 4 of the Defence).

I accept Mr Berina’s argument. Any other interpretation would make the Redundancy Agreement worthless, would allow an employer to get round not only the requirements of B2 but also to avoid ever having to make redundancy payments. The employer could argue that any person employed as was the plaintiff was employed for separate periods of two months and was outside the benefit of the agreement altogether.

The plaintiff was an unestablished employee who had been employed for more than six months. He is entitled to the benefit of the Redundancy Agreement.

In discussion with counsel we did not consider the question of damages if I should come to this conclusion. I shall hear counsel on the order I should make.

Dated the day of August 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice