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Arikiteun v South Pacific Marine Services [2010] KIHC 5; Civil Case 27 of 2009 (27 January 2010)

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

High Court Civil Case 27 of 2009

Between:

TAMIANO (AKA TOMINIKO) ARIKITEUN
Plaintiff

And:

SOUTH PACIFIC MARINE SERVICES
Defendant

For the Plaintiff: Mr Raweita Beniata
For the Defendant: Ms Taoing Taoaba

Dates of Hearing: 27 January 2010

JUDGMENT

The plaintiff was a steward aboard MV Nordwelle. His performance of duty was regarded as unsatisfactory. He was issued with a Written Warning and Reprimand dated 29/04/06. Dissatisfaction with his performance continued and he was issued with a second Warning and Reprimand dated 13/06/06. On 19/06/2006 he was dismissed, sent off the ship at Singapore. He claims re-instatement and damages for cost and unpaid wages.

The plaintiff was his own witness. He denied that anything further happened between 16 June and 19 June: denied he was guilty of any serious offence in those three days.

The defendant is under the disadvantage of not being able to call evidence from the Master of MV Nordwelle or others to prove any further misconduct. Mr Peter Lange the SPMS manager in Kiribati since August 2007 gave evidence. He has, of course no first hand knowledge of what went on: could only go on the documents in the plaintiff’s file. On these he refused the plaintiff’s request for reinstatement. I may add that Mr Lange has acted perfectly properly in the matter but his evidence could not help the court.

Mr Beniata tendered a number of documents to the Court including the Collective Agreement and Annex 2 to the Agreement “Disciplinary Procedure”. Mr Beniata relied on the sentence in the Annex “Any serious offence after the second reprimand is subject to dismissal without notice”.

There is no evidence that in those three days between the second reprimand and the dismissal the plaintiff committed any serious offence. That being so there was no justification for dismissal without notice. It follows that the plaintiff was wrongfully dismissed.

As to remedy the Court would not order reinstatement. All courts are unwilling to order reinstatement when quite obviously the relationship between the parties has broken down. I would not in the circumstances of this case order the plaintiff’s reinstatement. The only remedy to which the plaintiff may be entitled is an award of damages.

THE HON ROBIN MILLHOUSE QC
Chief Justice