IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 78 OF 2017

BETWEEN:		
BONTEANG TIRIWETITE
Plaintiff

AND:			
MARAKEI ISLAND COUNCIL
Defendant

Date of Hearing:			15 MAY 2023
Date of Judgment:			9 JUNE 2023

Appearances:				Ms. Kiata Kabure for the Plaintiff
Ms. Kanrooti Aukitino for the Defendant

JUDGMENT

Introduction:
1.	The plaintiff was employed as a casual porter at the Marakei airport sometime in 2012.  On 27 July 2017, he alleged that his employment was terminated and new casual porters were recruited to replace him by the defendant. He complained to the defendant that he had been confirmed in his employment by Air Kiribati Ltd, but the defendant refused to hear him. The plaintiff sued the defendant for the loss of his wages and other allowances due to the defendant’s action in ending his employment.

Issues:
2.	Parties raised three issues for the court’s consideration as follows;
i)	Whether or not the defendant employed the plaintiff.
ii)	Whether or not the defendant has the right to terminate the plaintiff’s employment, and
iii)	Whether or not the employment of the plaintiff is fair and just in the eyes of the public.  

Plaintiff’s position
3.	The plaintiff referred to section 4 of the Employment and Industrial Relations Code 2015, which interpreted the relevant terms;
i)	Employee means any person who performs work under a contract of service;
ii)	Employer means any person who has entered into a contract of service to employ any person and includes the Government;
iii)	Employment relationship means the relationship between an employee and employer under a contract of service;

4.	The plaintiff received a confirmation letter for his job as a casual porter from Air Kiribati. This letter was attached to his affidavit. Air Kiribati paid his wages and not the defendant. 

5.	Since his employment and salary were paid by Air Kiribati, he was an employee of Air Kiribati, and Air Kiribati was his employer, therefore, his termination or replacement by the defendant was wrong. Only his employer, Air Kiribati, and not a third party like the defendant, could terminate his employment. In July 2017, the plaintiff’s alleged that the defendant terminated his employment and replaced him with new porters. 

6.	The plaintiff also alleged that his wages and other bonuses stopped after this termination. He further stated that he went to show his confirmation letter from Air Kiribati to the mayor of the defendant, but he was told that he would be paid compensation as the defendant worked with the will of the people.

Defendant’s Position:
7.	There were public complaints regarding the plaintiff’s employment, as he automatically took over the post from his father after his retirement. The vacancy was not even announced. Because of the complaints, the defendant publicly announced the vacancy of the positions of casual porters occupied by the Tiriwetite (plaintiff’s father) and Tiare, who have retired. The test was conducted and supervised by the Air Kiribati officer, Batuao. His Councillor told the plaintiff also to sit the test, but he did not.

8.	 The defendant referred this Court to section 36(1) Part V of the Local Government Act 1984 as authority for its actions. The provision is quoted below;
“It shall be the duty of every council established under this Act to discharge the functions conferred by this or any other Act and generally to maintain order and good government within the area of its authority; and for these purposes a council may, within the limits of the functions so conferred, its by its own officers or by duly appointed agents do all such things as are necessary or desirable for the discharge of such functions.”

9.	 Under the above provision, for maintaining order and good government, the defendant did what they thought necessary to conduct a fair recruitment of a casual porter. The test was conducted and supervised by an Air Kiribati officer.

10.	The defendant, through Counsel, also submitted that the automatic engagement of the plaintiff to the position of a casual porter after his father, without transparent recruitment processes, is also against the principles of natural justice.   

11.	Because of the above, the defendant submitted that they have the right to replace the plaintiff from his work. The defendant’s position is that they did not terminate the plaintiff’s employment but only replaced him with a new person.

Court Analysis and Decision:

Issue 1: Whether or not the defendant employed the plaintiff.

12.	 Pursuant to the meaning of the terms; ‘employer,’ ‘employee,’ and ‘employment relationship,’ I agree that the defendant did not employ the plaintiff.   

13.	The employer is defined as someone who has entered into a contract of service to employ another person. In this case, there was evidence that Air Kiribati, not the defendant, had entered into an agreement of service with the plaintiff. This evidence is the letter by Air Kiribati titled ‘Confirmation of Employment’ and addressed to the plaintiff tendered as an annexure marked as BT 1.

14.	The letter is concise and its subject matter is ‘Confirmation letter for Bonteang Tiriwetite.’  The content is quoted below;

“I am writing to confirm that the above-mentioned is employed as a casual porter for Air Kiribati Ltd. He was employed on the outer island of Marakei to assist the agent in loading and off-loading cargoes.

Mr Bonteang will remain employed until he reaches his retirement age.

If more information is required, please do not hesitate to contact the undersigned.

Sincerely yours,

Koaa Ekeata (Mrs)
Human Resource Manager
For the Chief Executive Officer AKL.”

15.	 During cross-examination of the defendant’s Clerk, she admitted that Air Kiribati, not the defendant, paid for the plaintiff’s wages. The Clerk also admitted that the defendant replaced him with a new person.

16.	In light of the above, this Court finds that the defendant did not employ the plaintiff. Air Kiribati was the employer. 

Issue 2: Whether or not the defendant has the right to terminate the plaintiff’s employment.
17.	The answer to the above question is straightforward. We have established that the defendant was not the plaintiff’s employer; they did not have an employment relationship. Therefore, the defendant had no right to terminate the plaintiff from his work.

18.	It is also essential to mention the defendant’s position in which they claimed they did not terminate the plaintiff’s employment but only replaced him with a recruit.

Issue 3: Whether or not the employment of the plaintiff is fair and just in the eyes of the public.

19.	I agree that under section 36(1) of the Local Government Act, the defendant has a vital function to maintain order and good government on the island—no doubt about this.
 
20.	This provision does not give them the power to terminate existing employment relationships between the employer and employee if the defendant is not one of them. 

21.	The plaintiff’s employment may be seen as unfair and unjust in the eyes of the public, but this issue is not relevant to the termination of the plaintiff’s work. 

Finding

22.	 Going back to the issues mentioned above, this Court finds the following;

a)	Issues 1: Whether or not the defendant employs the plaintiff.
Answer: The defendant did not employ the plaintiff.

b)	Issue 2: Whether or not the defendant has the right to terminate the plaintiff’s employment.
Answer:  The defendant was not the plaintiff’s employer; therefore, the defendant did not have the right to terminate his employment. 

c)	Issue 3: Whether or not the plaintiff’s employment is fair and just in the eyes of the public?
Answer: The issue is irrelevant.

23.	The evidence is clear that the defendant did not terminate the plaintiff’s employment. Also, the plaintiff deposed that he did not receive any termination letter from his employer, Air Kiribati Ltd. Evidence shows that the defendant admitted to replacing the plaintiff with new persons after the test. Evidence also shows that the plaintiff knew then that the defendant, not being his employer, could not terminate his employment.

24.	But then again, can the defendant replace the plaintiff when they are not the employer? When an employee was replaced permanently from his work, he would be replaced by his superior or the person or body in charge of his employment, and the result would be the same as a termination. Therefore, the defendant also cannot replace the plaintiff. 

25.	the critical question is, could we blame the defendant, who was not the plaintiff’s employer, for the plaintiff’s loss of income from his employment relationship with a third party? In my view, the defendant cannot be blamed for the plaintiff's financial loss from his working relationship with a third party unless there is proof that the defendant had conducted actions that prevented or did not allow the plaintiff to continue to attend to his work. 

26.	Evidence shows that after receiving public complaints regarding the plaintiff’s taking over his father’s job (Tirirwetite) without proper recruitment, the defendant, in their full council meeting of 21/3/2017, made decisions for the post of casual porters, occupied by the plaintiff, to be publicly advertised and a test to be conducted. There is also evidence that an Air Kiribati Ltd officer conducted and supervised the test for replacing the plaintiff’s father (Tiriwetite) and one other retired porter (Tiare).  Air Kiribati Ltd paid the wages of the recruits, not the defendant. 

27.	So, the defendant made a decision for the test to be made. Still, the test was conducted by Air Kiribati Ltd, and Air Kiribati Ltd also paid the recruits as an employer, and after the test, the defendant informed the plaintiff that he had been replaced. Based on this evidence alone, could we blame the defendant for the plaintiff’s financial loss from his working relationship with a third party? In my view, the defendant only conveyed this information or understanding to the plaintiff, as this was the intention behind the test. However, if it were true that the new porters were intended to replace the plaintiff, he would be replaced by Air Kiribati as the employer, not the defendant, and the plaintiff knew about this from the start (refer to his affidavit). Air Kiribati Ltd would have sent the plaintiff his termination letter to formalise this understanding. There was no such termination letter from Air Kiribati Ltd.

28.	In light of the above, this court could not find the defendant liable for the plaintiff’s loss of income from his employment relationship with the third party. The plaintiff’s case against the defendant is therefore dismissed. Cost to the defendant to be agreed or taxed.

Order accordingly.

HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice