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Uan v Attorney General [2014] KIHC 1; Civil Case 101 of 2010 (21 March 2014)

IN THE HIGH COURT OF KIRIBATI 2014

CIVIL CASE NO. 101 OF 2010

BETWEEN

ITINNANG UAN AND OTHERS
PLAINTIFFS

AND

ATTORNEY GENERAL IRO DIRECTOR,
KIRIBATI NATIONAL STATISTIC OFFICE
MINISTRY OF FINANCE
DEFENDANT

Before: The Hon Chief Justice Sir John Muria

20 March 2014

Ms Taoing Taoaba for Plaintiffs
Ms Taaira Timeon for Defendant

JUDGMENT

Muria CJ: This is a case for assessment of damages. The matter had gone to the Court of Appeal which affirmed the High Court's decision that the plaintiffs were entitled to be paid overtime. See Itinnang Uan and Others -v- Attorney General iro Director, Kiribati National Statistics Office, Ministry of Finance (19 November 2010) High Court of Kiribati, Civ Case No. 101 of 2010; Attorney General iro Director, Kiribati National Statistics office, Ministry of Finance –v- Itinnang Uan and Others (31 August 2011) KICA, Civ. App. 9/11.

The written contract entered into between the plaintiffs and defendant was made on 18 September 2009 and took effect on 23 September 2009. The duration of the contract was for the period 23 September to 8 December 2009. Under the contract, the plaintiffs were employed to carry out a Demographic Health Survey on South Tarawa, which they did.

The plaintiffs were expected to work five days a week. Evidence has shown that they worked six days a week. They were paid fortnightly on Friday. As overtime was not included in the written contract, they refused to work on a Saturday. They took their complaint up with the Director of Statistics in the Ministry of Finance who gave an undertaking that they would be paid overtime for working on a Saturday. That undertaking was given on 28 September 2009.

The High court and Court of Appeal had already decided that the Director had the apparent authority to give the undertaking, thereby binding the defendant to pay overtime to the plaintiffs.

The dispute now is concerned with the claim by the plaintiffs for overtime for Saturday 26 September 2009 and Monday 5 October 2009. The defendant refused to pay overtime for 26 September 2009 because, as Ms Timeon of Counsel for the defendant submitted, the agreement to include overtime payment was made on 28 September 2009. Thus, argued Counsel, the plaintiffs are not entitled to claim overtime for 26 September 2009. Ms Taoaba, on the other hand, submitted that although the agreement to include overtime was done on 28 September 2009, the plaintiffs are entitled to be paid overtime for work done on 26 September 2009. Counsel contended that the agreement to pay overtime must be taken to cover the duration of the contract.

On reading the evidence before the Court, it seems to me that Ms Taoaba was correct to say that the undertaking by the defendant to include overtime payment must be for the duration of the contract. This must clearly be the case. The contract started on 23 September 2009 and the plaintiffs commenced work. On 26 September 2009 they also worked only to realize that they would not be paid for working on a Saturday. They complained and the defendant gave the undertaking that they would be paid overtime for working on a Saturday.

In my judgment, in the absence of evidence to suggest that overtime should only start on 28 September 2009, the agreement to pay overtime to the plaintiffs was for the duration of the contract, that is, from 23 September to 8 December 2009. That, in my view, is the only sensible construction to place on the undertaking by the Director to pay overtime to the plaintiffs in this case.

The next date in dispute is 5 October 2009. This was a Monday. It was a public holiday, being the National Teachers' Day. The plaintiffs claim that they are entitled to be paid at a "double" rate for that day because it was a public holiday.

Ms Timeon submitted that the plaintiffs' wages for 5 October 2009 were already included in their pays under the written contract. So they are not entitled to overtime for 5 October 2009. I agree that the plaintiffs' wages for 5 October 2009 were catered for under the written contract. The issue of working on a public holiday was not stated in the written contract dated 18 September 2009 nor was it part of the oral contract made on 28 September 2009. They were not expected to work on public holidays. To allow the plaintiffs overtime payments for work done on Monday 5 October 2009 would be giving them something that was not contained nor contemplated in their contract of employment.

The claim for overtime for 5 October 2009 must be rejected. That being the case, the question of "double" rate for 5 October 2009 is unnecessary to consider.

Both parties agreed that the appropriate overtime rate is $5.01 per hour. As I have found that the plaintiffs are entitled to their overtime for work done on 26 September 2009, they should be paid overtime for that date at the rate of $5.01 per hour and I so order.

The plaintiffs are not entitled to be paid overtime for work done on the public holiday on Monday 5 October 2009.

Dated the 21st day of March 2014

SIR JOHN MURIA
Chief Justice