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Favae v Central Pacific Producers Ltd [2015] KIHC 39; Civil Case 27 of 2011 (26 June 2015)

IN THE HIGH COURT OF KIRIBATI 2015

CIVIL CASE NO. 27 OF 2011

BETWEEN

TEKARIKA FAVAE
PLAINTIFF

AND

CENTRAL PACIFIC PRODUCERS LTD
DEFENDANT

Before: The Hon Chief Justice Sir John Muria

14 November 2014

Mr Raweita Beniata for Plaintiff
No appearance by or for Defendant

JUDGMENT

Muria, CJ: The plaintiff's claim is for a declaration that his suspension was unlawful and a declaration that his dismissal was unlawful. He also claims unpaid wages to the date of judgment and general damages to be assessed.

BRIEF BACKGROUND

The plaintiff was employed by the defendant as a Second Mate and Store Controller on MV Moamoa, a ship belonging to the defendant. It is not clear when the plaintiff commenced working for the defendant, but it appears that he had been employed by the defendant for quite some time before the events of 2005.

In September 2005 the MV Moamoa sailed to Kiritimati Island where its cargoes were unloaded. There were still surplus cargoes left on board the ship. The plaintiff objected to the release of the surplus cargoes unless the main office of the defendant(CPPL) in South Tarawa gave permission to do so. The plaintiff then consulted the Master of the vessel as to what to do with the surplus cargoes. An argument ensued between the plaintiff and the Master of the vessel because the Master accused the plaintiff of withholding the cargoes from the recipient and sent a fax to that effect to CPPL main office in South Tarawa.

As a result of the argument he had with the Master of the vessel, the plaintiff left MV Moamoa which sailed back to Tarawa the next day. The plaintiff returned to Tarawa later by MV Mataraoi. He arrived in Tarawa on Saturday 29 October 2005.

On arrival in South Tarawa, the plaintiff went to CPPL office on Monday 31 October 2005 to speak to the Supervisor who was not present. Only the Kiritimati Island Branch Manager was in the office. The Branch Manager then handed the plaintiff his suspension letter dated 24 October 2005 and left the room.

On 2 November 2005 the plaintiff appealed to the defendant's Board against his suspension. The plaintiff has yet to receive the decision of the Board on his appeal.

While still waiting for two years for the Board's decision on his appeal, the plaintiff sought and got a job in 2008 as a Second Mate in a ship belonging to Betio Mini Mart.

ISSUE

As far as the Court is concerned, the only issue for the Court to decide is whether the plaintiff was lawfully terminated or not.

CONSIDERATION AND DETERMINATION

The only evidence before the Court comes from the affidavits of the plaintiff, despite the Order on Directions made by the Court requiring parties to file affidavit evidence. There is no evidence to support the defence filed by the defendant. In actual fact, there was nothing concrete by way of a defence to the plaintiff's claim in the defendant's Statement of Defence. Paragraph 10 of the Statement of Defence is a mere denial and nothing more. There is also a resounding tone of admission by the defendant of the plaintiff's claim in the defence.

The uncontested evidence of the plaintiff is that he was suspended by a letter dated 24 October 2005. Effectively he was terminated. His appeal to the defendant's Board on 2 November 2005 was never determined. He remained unemployed until 2008 when he obtained employment with Betio Mini Mart. There is no evidence to support the suggestion by the defendant that the Board considered the plaintiff's appeal on 25 November 2005 and terminated the plaintiff's employment. When one looks at the correspondences between the plaintiff's lawyer and the defendant, Exhibits "A", "B" and "C" to Mr Beniata's affidavit dated 12 December 2012, it is plain that even by September 2008, the defendant's Board had not yet resolved the plaintiff's appeal. The affidavit of Mr Beniata also indicated an offer of settlement by the defendant of $1,000.00 which was not accepted by the plaintiff.

When one considers the evidence in this case, the revelation is clear the plaintiff was terminated from his employment following a dispute with his boss on the ship MV Moamoa at Kiritimati Island. His suspension letter dated 24 October 2005 which effectively was a termination of his employment, was given to him when he arrived in Tarawa. He was not given an opportunity to be heard before his suspension. He appealed and to date no decision was given on his appeal. He was not given salary in lieu of notice. He remained unemployed while waiting for the defendant's decision on his appeal.

In 2008, he had to find employment to support himself and his family. There is no plausible defence offered by the defendant. As such it is not surprising that the defendant offered to settle the matter out of Court.

The only proper conclusion in this case is to find the defendant had unlawfully terminated the plaintiff's employment and I so find. The plaintiff is entitled to his one month salary in lieu of notice. The plaintiff is also entitled to his unpaid salary. His salary then was said to be $207.69. It wasnot made clear whether that was his fortnightly or monthly pay.

I think it would be proper to take into account the defendant's offer of settlement made in December 2008. Had the offer of settlement was accepted except for the quantum the plaintiff would have been entitled to an amount more than $1,000.00 and which would have been reasonable.

In this case, the best course would be to let the parties reach a settlement on the quantum only for period 24 October 2005 to December 2008, a period of three years and two months.

I give judgment for the plaintiff on liability. The parties are to agree on the quantum of damages for period 24 October 2005 to 31 December 2008.

In addition, the plaintiff is entitled to one month salary in lieu of notice.

Dated the 26th day of June 2015

SIR JOHN MURIA
Chief Justice