IN THE HIGH COURT OF KIRIBATI 2014

CIVIL CASE NO. 146 OF 2012

BETWEEN

BUREINI BONINI
PLAINTIFF

AND

KIRIBATI OIL COMPANY LTD
DEFENDANT

Before : The Hon Chief Justice Sir John Muria

21 November 2013

Mr Mantaia Kaongotao for Plaintiff
Mr Banuera Berina for Defendant

JUDGMENT

Muria CJ:	The plaintiff claims that he was unlawfully dismissed from his employment and seeks damages against the defendant.

FACTUAL CHRONOLOGICAL BACKGROUND

The following chronological events present the factual background to this case.

2 September 1994	Plaintiff was employed by defendant as Mechanic/Fitter
	
7 April 2010	Plaintiff was suspended by defendant for one (1) month without pay because of consuming alcohol during working hours;

Plaintiff did not appeal against that decision.
	
6 June 2011	Plaintiff was suspended by defendant for two (2) months without pay for being found drunk at defendant's Depot during working hours;

Plaintiff did not appeal against that decision;

Defendant requested the plaintiff to take the AA Programme during his two months suspension.
	
13 October 2011	Plaintiff was suspended without pay until further notice for consuming alcohol during working hours;
	
7 November 2011	Plaintiff was summarily dismissed from his employment;

Plaintiff was advised of his right to appeal to the Board of Directors within 10 days;

Plaintiff did not appeal to the Board of Directors.	

PLAINTIFF'S CASE

The plaintiff's case is that he was dismissed while serving his third suspension which was imposed on him on 13 October 2011. It was submitted on his behalf that his dismissal was wrongful because the two letters dated 13 October 2011 and 17 November 2011 were not from the Management but only from one Kianteata Teabo. It was not until 
18 July 2012 that the plaintiff said that he received his unsigned letter of dismissal dated 7 November 2011 and that the signed copy of that letter was given to the plaintiff on 30 July 2012.

The plaintiff also claims that his summary dismissal was unlawful because it was done in breach of the rules of natural justice, the Constitution of Kiribati and the KOIL Conditions of Service (KCS) governing his employment in the defendant company.

DEFENDANT'S CASE

The case for the defendant is simply that the plaintiff was disciplined three times by way of suspension without pay for consuming alcohol during working hours and for being found drunk in the defendant's premises (Depot). No challenge was taken by the plaintiff to his suspensions.

The letter dated 7 November 2011 was written following the Management decision to dismiss the plaintiff in the light of the previous disciplinary actions taken against him. The plaintiff was given 10 days to appeal to the Board of Directors against his dismissal. The plaintiff did not appeal. The plaintiff's dismissal, it was submitted, was justified and therefore lawful.

ISSUES

As far as the Court is concerned, the main issue in this case is whether the defendant was justified in dismissing the plaintiff.

ARGUMENT AND DETERMINATION

There is no dispute in this case that the plaintiff had been disciplined three times with suspension from his work. It is also not disputed that the disciplinary suspensions were for consuming liquor during working hours and for being drunk in the work place (defendant's depot). There is also no dispute that the plaintiff did not appeal against any of the three disciplinary suspensions.

The third suspension was on 13 October 2011. It was following that suspension that the defendant took the decision that the plaintiff should be dismissed. It is accepted by the defendant that it summarily dismissed the plaintiff while he was still on suspension. The reason for taking that course of action was explained in the affidavit of Tatang Tataua sworn to on 10 September 2013, in particular Exhibit C, which is the letter of 7 November 2011.

The letter of 7 November 2011 clearly shows that the Management felt that they had used up all the disciplinary measures on the plaintiff and subject to the Board of Director's authority on appeal, the Management decided that the plaintiff be dismissed. The plaintiff was given 10 days to appeal to the Board of Directors. The plaintiff did not appeal.

The plaintiff's case as put by his Counsel, Mr Kaongotao, is that the dismissal of the plaintiff by the defendant was unlawful. This, it is argued, is because no opportunity was given to the plaintiff to be heard before the three disciplinary suspensions were imposed on him. Although not directly admitting that the plaintiff had difficulty with his alcohol related behaviour, his affidavit evidence contains 'badges' of consistent undisciplined habits due to alcohol consumption. Those habits started even before April 2010. In his own evidence he was suspended in or about 1998 for coming to work drunk after overnight drinking. Upon coming to work in the morning he wanted to purchase beer from the defendant's Canteen, as he said in his own words "to get me awake". He was refused.

In April 2010, the plaintiff said that he came to work in the morning of 1 April 2010. The Operations Manager, Mr Tenangibo, noticed that the plaintiff was not feeling well to work due to consumption of liquor. He said he was drinking beers the previous day. However, the other employees saw him drinking during working hours.

With regard to the June 2011 suspension, the plaintiff agreed he drank beer on 1 June 2011. However he said that he drank beers during the lunch break, not during working hours. He might well had been drinking during lunch hour break, but he was suspended for being found drunk in the defendant's premises during working hours.

In so far as the October 2011 suspension, the plaintiff again admitted he had been drinking alcohol. However, he said he was having a "liquid lunch" and when he went to get his stuff from the cupboard to go home, he was noticed to be drunk. A letter of suspension was issued to him dated the same day 13 October 2011.

It appears from his evidence that his two complaints against the defendant's actions taken against him are that he was not called to explain his part on what happened, and that the punishments were harsh. First, it must be accepted that consuming alcohol or being found drunk in work places during working hours are serious misconduct in any working institution or place. It justifies suspension or even summary dismissal. The plaintiff in the present case was found to consume alcohol and found drunk in the defendant's working premises. No explanation can cure the misconduct of the plaintiff in this case.

Secondly, the plaintiff had not raised any complaint or appeal against the defendant's disciplinary suspensions to the Board of Directors as provided for under the KOIL Conditions of Service. He did not do that then and he cannot complain now.

With regard to his dismissal on 7 November 2011 as contained in the letter dated 7 November 2011, the defendant accepted that the letter was not served on the plaintiff immediately. This is rather unfortunate because although the letter was dated 7 November 2011, the plaintiff did not know of it until 18 July 2012, some eight months later. Three is, however, one thing the plaintiff knew as from 17 November 2011, namely, that he was told that he was "no longer working since 13 October 2011" in a Note written by the defendant's Senior Officer, Mr Teabo. The plaintiff and his wife needed such a Note from the defendant because the plaintiff required it to withdraw his KPF contribution.

Apart from the request by the plaintiff for the defendant's assistance by way of a written Note to enable him to withdraw his KPF, the plaintiff also requested a Reference for himself from the defendant to assist him find a new job. The defendant made a Reference for the plaintiff on 28 May 2012. See evidence of the plaintiff's wife in her Sworn Statement of 23 April 2013.

When one puts these scenario together, the position becomes clear, that is to say, that the plaintiff was suspended on 13 October 2011. While still on suspension, he was dismissed on 7 November 2011. The plaintiff was shown the copy of that letter on 18 July 2012. The plaintiff's lawyer wrote to the defendant seeking to have the plaintiff reinstated. On 20 July 2012 the defendant wrote to the plaintiff, reaffirming its decision to dismiss the plaintiff for repeated drinking behaviour. The signed copy of the letter of 7 November 2011 was finally given to the plaintiff on 30 July 2012.

In the meantime the plaintiff knew he no longer worked for the defendant since he was told on 17 November 2011 that he was no longer working with the defendant. He did not complain about being told that he was no longer working for the defendant. He accepted he no longer worked for the defendant in May 2012 when he asked for the defendant's assistance by way of Reference. Then when he learned of the letter of 7 November 2011 in July 2012, he asked to be reinstated. That did not sit well with the position he adopted since 17 November 2011. Further when he received the letter on 30 July 2012, he did not appeal against his dismissal. Even, taking the 18 July 2012 as the date he was reasonably expected to have known that he was dismissed, he was given 10 days to appeal to the Board of Directors. He ought to have exercised his rights under the KOIL Conditions of Service first before coming to this Court. He did not do so.

It is sought to be argued for the plaintiff that he was ignorant of his right to appeal under the KOIL Conditions of Service. This, it is said, is because he was not informed of the terms under the KOIL Conditions of Service. This argument cannot be accepted. Ignorance of the provisions of the KOIL Conditions of Service is not an excuse for the plaintiff who ought to familiarize himself with the terms and conditions of service of his employment. Ignorance of the rules cannot be pleaded by the plaintiff to give him excuse.

On the evidence before the Court, this is not a case of unlawful termination of employment. The plaintiff's claim therefore fails and it is dismissed with costs to be taxed if not agreed.

Dated the 4th day of July 2014

SIR JOHN MURIA
Chief Justice