AUBEELUCK
v PERLE DE LA SAVANNE 2012 SCJ 75
In a plaint entered
before the Industrial Court, the appellant averred that he had been in
continuous employment of the defendant as a ticket examiner since the 14 January
2001. His employment was summarily terminated without valid cause or justification.
He claimed wages in lieu of notice and severance allowance at the punitive rate.
The Magistrate held that
the employer was entitled by virtue of its inherent power of a “chef
d’entreprise” to terminate the employment of the appellant with payment of severance
allowance at the normal rate. She then computed the compensation due to the
appellant at that rate.
We are of the view that
the learned Magistrate was perfectly entitled, on the evidence available, to reach
the conclusion that the contract of the appellant was of indeterminate
duration.
The appellant was
cross-examined as to alleged harassment of other employees, but this allegation
was vehemently repudiated by the appellant. At any rate, he was never the
subject of disciplinary proceedings for such alleged misconduct. His allegation
that two ticket examiners were employed after his contract was terminated
remained unchallenged.
We are of the view that
although the learned Magistrate made a correct appreciation of the evidence,
she wrongly awarded severance allowance only at normal rate. We consequently
order the respondent to pay the appellant severance allowance at six times the
normal rate.
CHAN MAN SING v WING TAI
CHONG CO. LTD 2012 SCJ 82
The
questions now are: (i) whether the learned Magistrate was right in her findings
that the words uttered by the appellant constituted misconduct; (ii) whether
the appellant’s dismissal was warranted; and (iii) whether severance allowance,
be it at normal or punitive rate, was not due.
Whilst
not every misconduct will justify a dismissal, each case must be decided on its
own merits and each misconduct must be viewed in the specific context in which
it occurred and in the light of the nature of the relationship existing between
the employer and employee. Also, whether in any given situation an employer
cannot in good faith do otherwise than dismiss a worker for misconduct is a
question of fact.
In
the present case, the appellant, a salesgirl/shop assistant whose duties were inter
alia to be polite and at the service of customers, has conceded having been
the author of unpleasant remarks made to a customer. Given that the
respondent’s business was largely depended on customers, it was
certainly not to its advantage and interest if its employees were to be
renowned for their rudeness and unwelcoming attitude. Irrespective of whether
the remarks of the appellant were directed at a specific customer or not
the stark fact remains that they were made within the hearing of
customers present at the material time and one of them indeed took them
to have been addressed at her. In the circumstances of the present case,
the appellant’s behavior can hardly be said not to amount to misconduct.
In
addition, the respondent’s decision, endorsed by the learned Magistrate, that
the appellant was a disruptive element who had by her conduct which was not in
accord with the “bon fonctionnement” of its business breached the bond
of trust in the employer/employee relationship leaving it with no alternative
course of action but to put an end to her employment in the interest of the
undertaking, is valid and sustainable.
We,
however, pause here to remark that in her judgment the learned Magistrate used
the word serious and gross to qualify the
misconduct of the appellant. Whilst we agree with the learned Magistrate that
the behaviour of the appellant did constitute an act of misconduct, we are,
however, of the view that it was neither “une faute legère” nor “grave”,
but a serious one warranting the termination of the appellant’s contract of
employment, but, with payment of severance of allowance at the normal rate. We,
therefore, do not see any merits in any of the complaints of the appellant that
the respondent had unfairly and arbitrarily terminated her contract of
employment.
We
have, therefore, not seen any compelling reason justifying the complaints of
the appellant that the respondent had unfairly and arbitrarily terminated her
contract of employment nor that the learned Magistrate’s appreciation and
analysis of the evidence and findings were erroneous except in so far as
payment of severance allowance is concerned.
MINISTRY OF LABOUR v
GOORROOCHURN 2012 SCJ 110
We
agree with the submission made in the respondents’ skeleton arguments that a “lien
de préposition” did exist, by virtue of section 15(1) of the Industrial
Court Act, between the defendant and the labour officer who conducted the case
before the Industrial Court. The provision in that enactment enabled the
defendant to “institute such civil or criminal proceedings as he thought
necessary” and to “conduct such proceedings” in the Industrial
Court “for, or in the name of, a worker.” Indeed all proceedings
before the Industrial Court are conducted in the name of the appellant (then
defendant) by a labour officer who is his subordinate such that the “lien de
préposition” thereby exists and does not have to be specifically
established by evidence.
In
the circumstances of the present case, the finding of the learned Magistrate
that the labour officer had committed a “faute lourde” by his failure to
cross-examine the private detective was solely based on the value of
cross-examination generally and not on the importance of such cross-examination
in that particular case. The evidence on record fell short, in our view, of
establishing to the required standard of proof, that cross-examination was
important or really called for at all.
SAGAR HOTELS & RESORTS
LTD. v SEWDIN 2012 SCJ 122
This
is an appeal against the judgment of the learned Magistrate of the Industrial
Court ordering the appellant, then defendant, to pay to the respondent, then
plaintiff, severance allowance at the punitive rate for unjustified dismissal
as the employee was not given the right to a hearing before a disciplinary
committee before being dismissed.
It
has been established that the hearing as mentioned in the Labour Act (repealed)
need not be in the manner and rigorous formalism as in a Court of law.
Section
32(2) (a) of the Act provides that “No employer shall dismiss a worker
unless he has afforded the worker an opportunity to answer any charges made
against him and any dismissal made in contravention of this paragraph shall be deemed
to be an unjustified dismissal”.
It
follows, therefore, that an employer who is contemplating to terminate the employment
of an employee because of suspected gross misconduct must by virtue of section
32(2) (a) of the Act provide a hearing otherwise any dismissal would be
deemed to be unjustified, vide Bundhoo v Mauritius Breweries [1981 MR
157]. However, it is now well settled that a hearing under this
section of the Act need not be conducted with the stringent formality
that is expected in a Court of law where the standard of proof, evidential and
procedural sanctity has to be strictly followed. The Court has in the case
of S.V. Goinden v Yee Chuin Koon &Cie [2003 SCJ 94] reaffirmed
what has been held in Tirvengadum v Bata Shoe (Mauritius) Co.
Ltd [1979 MR 133], Mamode v De Speville [1984 SCJ 172] and Maunick v
Undersea Walk Ltd [2003 SCJ 27] that “the hearing is not required
to be conducted with the formality and all the exigencies, whether procedural
or evidential, appropriate to a Court of law or Tribunal”.
However,
it is important to note at this juncture that although a hearing under this
section of the Act need not be conducted with all the formality and exigencies
of a Court of law, such a hearing must not be meant to be a mere ritual simply
to enable the employer to dismiss the employee without really informing the
employee of the charges against him and without affording him an opportunity to
rebut them.
In
the case of Cie Mauricienne d’Hypermarchés v N.P. Rengapanaiken [2003
SCJ 233], it was held that “although it is a well settled principle that
a hearing for the purposes of section 32 of the Labour Act, is not required
to be ‘conducted with the formality and all the exigencies whether
procedural or evidential appropriate to a Court of law or Tribunal’, it
does not follow that a hearing is merely meant to be a procedural ritual to
enable the worker to give his explanation to the charges before his
dismissal. Where gross misconduct is being alleged, as in the present
case, there must surely emerge at the hearing evidence which is
sufficiently substantial and reliable in order to establish misconduct which
would justify the summary dismissal of the worker”.
In S.V. Goinden (supra), stress was
laid on to the fact that “the context in which the hearing took place as
well as the testimony of the appellant himself makes it absolutely clear
that the appellant was aware of the fact that the committee which he was
to attend was in fact a disciplinary committee”.
In
the case at hand, it is clear that when the respondent was made to confront the
VIP guest and attended the meeting which took place in the office of the Human
Resources Manager, he had no knowledge at all that such an exercise was of such
a character as to eventually lead to hissummary dismissal. It was held in the
case of Robert Tranquille v P.R. Limited [1996 SCJ 366], that “the
hearing provided for by section 32(2) (a) of the Act is of course not a
formal hearing. It cannot be equated to a hearing in the judicial sense. But a
minimum of procedural requirements should be observed so that what takes
place is conductive to the notion of a fair hearing. This would require
that a reasonable opportunity be given to the employee to answer charges
which are clearly explained to him, preferably in writing”.
In
the present case, given the circumstances which had led to the respondent’s
dismissal as explained by the latter and which the trial Court chose to accept,
we consider that the learned Magistrate cannot be faulted for reaching the
conclusion that “the plaintiff was not given an adequate opportunity
to put questions to the guest and to give his full explanations”.
Even
if on record, the facts show that there was enough material which prima facie
amounted to gross misconduct, we agree with the finding of the learned
Magistrate that non-compliance of the statutory obligation to afford the
respondent a right to offer his explanation to rebut the prima facie case
renders the appellant liable to damages at the punitive rate. There was a
duty on the employer to afford the employee an opportunity to put in his
version of facts.
HEMISPHERE SUD LTD v
CHEVREAU 2012 SCJ 141
…in
determining whether or not an act could be termed as one of gross misconduct,
the Court has to look at the particular facts and circumstances of the case
before it.
SEWTOHUL v FSC 2012 SCJ
208
The
case for the Commission was that the employee was dismissed within 7 days of
the day on which the Commission became aware of her misconduct by her
confession as per her letter and that in these circumstances there was no need
for a hearing.
The
learned Magistrate found in favour of the Commission that the summary dismissal
of the appellant was fully justified having regard to the nature of the acts of
misconduct committed by her and in view of her clear admissions in the letter
she sent to the Commission.
The
two grounds of appeal and the reply of the Commission to the appellant’s
skeleton arguments raise the following questions:
1.
Can the appellant raise on
appeal the issue that she was notified of the dismissal outside delay in breach
of section 32 (1) (b) (ii) (C), if it was not raised at the trial; and
2.
Was the dismissal effected
by the Commission within the statutory delay of 7 days of the day on which it
became aware of the misconduct.
The
first question must be answered in the affirmative as this is a matter of law.
In the present case, it cannot be said that the matter was not canvassed or
considered by the learned Magistrate who could not have decided whether the
dismissal was unjustified unless he had also considered whether the dismissal
was effected within the time limit. Besides, one of the two grounds specified
under section 32 (1) where an employer cannot dismiss a worker is if the
dismissal is for alleged misconduct where the two conditions prescribed by the
statute are not satisfied. These two requirements are described in section 32
(1) (b) (i) and (1) (b) (ii) - that the employer cannot in good faith take any
other course, and the dismissal is effected within 7 days of certain
occurrence. In the present case, the dismissal must take place within 7 days of
the day on which the employer became aware of the misconduct.
It
is therefore important to reproduce the relevant parts of section 32 entitled
“Unjustified termination of agreement”:
“(1)
No employer shall dismiss a worker –
(a)
by reason only of the worker’s filing in good faith of a complaint, or
participating in a proceeding, against an employer involving alleged violation
of a law;
(b)
for alleged misconduct unless –
(i)
he cannot in good faith take any other course; and
(ii)
the dismissal is effected within 7 days o f –
(A)
where the misconduct is the subject of a hearing under subsection (2), the
completion of the hearing;
(B)
where the misconduct is the subject of criminal proceedings, the day on which
the employer becomes aware of the final judgment of conviction; or
(C)
in every other case the day on which the employer becomes aware of the
misconduct.
2
(a) No employer shall dismiss a worker unless he has afforded the worker an
opportunity to answer any charges made against him and any dismissal made in
contravention of this paragraph shall be deemed to be an unjustified dismissal.
(b)
The worker may, for the purpose of paragraph (a), have the assistance of a
representative of his trade union, if any, of an officer or of his legal
representative.” (Emphasis added).
It
is therefore obvious that no dismissal which does not satisfy the two
conditions under subsection (1) (b) (i) and (ii) can be effective or justified.
Vide also Mauvilac Industries Ltd v Mohit Ragoobeer [2007 UKPC 43].
Ground 1 therefore fails.
Was the dismissal
effected within 7 days of the day on which the Commission became aware of the
misconduct?
It
is not disputed that the Commission dismissed the appellant for gross
misconduct and learned Counsel for the appellant does not suggest that the
Commission could in good faith have taken any other course. However, relying on
section 32(1) (b) (C) of the Act, Counsel submitted that the dismissal is
unjustified since the Commission did not dismiss and notify the dismissal to
the appellant within the statutory delay of 7 days of 5 December 2007, the day
on which, according to him, the Commission become aware of the misconduct.
To
consider the facts of the present case, which admittedly falls within section
32 (1) (b) (C), as being under section 32 (1) (b) (B) will defeat the provision
of the section which in essence aims at preventing an employer from terminating
the employment of a worker for misconduct without giving him an opportunity to
answer the charges against him. As was pointed out by the Privy Council in Mauvilac,
(supra), by virtue of section 32 (2), even if the two conditions are satisfied,
that is, (i) that the employer could not take any other cause and (ii) the
worker was in effect dismissed within 7 days, the dismissal will be “deemed
to be unjustified” if before the dismissal for misconduct becomes effective,
the worker is not given an opportunity to answer the charges and state his
case, with the assistance of a relevant person representing him.
It
cannot be overlooked that section 32 (2) (a) applies to all dismissals,
irrespective of whether the dismissal is under category A, B or C specified in
section 32 (1) (b) for alleged misconduct. As also pointed out by the Privy
Council in Bissoonauth Premchandra v The Sugar Fund Insurance Board
[2005 PRV 68], the purpose of section 32 (2) (a) is to give an employee who
runs the risk of being dismissed a substantive right to make out a case to his
employer as to why he should not be dismissed. Whereas section 32 (1) (b) (ii),
being merely procedural, imposes a time limit on the employer within which he
should exercise the right to dismiss the employee. It was emphasised that an
employer cannot dismiss an employee for an alleged misconduct “unless he has
afforded the worker an opportunity to answer any charges made against him”.
We
consider that the present case comes within category C where the appellant,
after having been given an opportunity to promptly answer the charges made
against her by making written or oral representations, chose to make
representations by letter which reached the Commission on 11 December 2007 in
which she made a full confession in answer to the charges, expressing apologies
and promising not to do so in the future. She further pleaded to be allowed to
keep her job, giving the personal circumstances in which she was when she
committed the gross misconduct.
Thereupon,
the Commission cannot be faulted for having taken the view that there was no
need for a hearing, and this is not contested by the appellant. Considering
that the charges were serious, the Commission rightly proceeded, within 7 days
therefrom, to summarily dismiss the appellant and also notified her of the
dismissal on 17 December 2007.
JAGESSUR v NTC 2012 SCJ
219
It
is a settled principle that what amounts to gross misconduct would depend on
the particular circumstances of each case.
NAIK v THE NATRESA 2012
SCJ 229
In
the present case, the unilateral decision to terminate the plaintiff’s
employment forthwith, without any formal charges preferred against him, without
hearing him and giving him an opportunity to answer any charges against him and
without any valid reason for his dismissal, was clearly in breach of the
elementary rules of natural justice and constituted an unfair and unjustified
dismissal both under our Civil Code and under s 32 of the Labour Act 1975 (vide
Bissoonauth v. The Sugar Fund Insurance Board (Mauritius)[2007 UKPC
17], [2005 PRV 68]; D. Panday v. The Judicial and Legal Service Commission
[2007 PRV 33], [2008 MR 371]; J. Pareathumby v. M/S Bowman International Sports
(Ltd) Mauritius [2009 SCJ 120]; Pamplemousses/Riviere Du Rempart District Council
v. Hurbungs [2010 SCJ 382]; Captain A. S. Fraser v. Air Mauritius Ltd [2011 SCJ
373]).
The
burden rested on the defendant to prove on a balance of probabilities that the
dismissal was justified (vide Harel Freres v. Veerasamy and Anor [1968 MR
218]; Ramen v. Desire [1986 MR 216]; The Pamplemousses/ Riviere du
Rempart District Council v. D. Hurbungs [2010 SCJ 382]). The
defendant has clearly failed to do so.
Under
our legislation, it was open to the plaintiff to bring an action either under
the Civil Code for breach of contract or tort or under the Labour Act 1975. The
plaintiff, having chosen the present forum, is entitled to such damages which
he has suffered as a result of the wrongful and unlawful dismissal which
constitutes a ‘faute’ towards him. He is clearly entitled to obtain payment of
what he would have earned up to the end of his contract and to moral damages
sustained by him as a result or direct consequence of the termination of the
contract.
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