THE SUPREME COURT OF
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 11th June 2003
Present at the hearing:-
The Rt. Hon. Justice Tipping
[Delivered by The Rt. Hon. Justice Tipping]
1. At the heart of this appeal from the Supreme Court of Mauritius lie two related issues. The first is whether the respondent (
3. He now appeals to their Lordships’ Board on essentially two grounds. He contends that there was no dismissal, asserting that the correct view is that
5. On 21st September she wrote to
I have already given you written statutory notice that I intend to join the
On 20th September 1996 you called me in your office and told me that I should resign or otherwise I would not obtain my transfer certificate. I am advised by my counsel to place on record that I do not intend to resign as I wish to obtain a transfer to
I expect a written answer from you as to whether you are prepared to issue the transfer certificate.
To this letter she received a peremptory reply signed by
6. At the end of the school term in October
7. The learned magistrate specifically rejected evidence called by
8. The essence of the learned magistrate’s reasoning is captured in the following paragraphs near the conclusion of her judgment:
“On the whole, I am convinced that plaintiff never resigned from her job with the defendant. On the contrary, she made it quite clear as early as September 96, when she applied for a transfer certificate, that she did not intend to resign as she wished that her existing length of service and acquired rights, be preserved with her new employer. In fact resigning from the defendant’s employment after 12 years of continuous service, could only be prejudicial to her interests.
The evidence on the other hand reveals clearly that defendant who stated in Court that plaintiff taught music and it was not easy to find someone to replace her, was not happy about the plaintiff’s proposed transfer to
When the plaintiff made it clear to him that she did not propose to resign, he constructively dismissed her. When she reported for work during the school vacation, she was not given the attendance register to sign and he gave instructions to his staff to the effect that the plaintiff no longer worked at the college. Such that on
9. In its judgment dismissing the appeal the Supreme Court observed that the Industrial Court was wrong to find, as it had, that Mrs Ramkurrun “did not propose to resign” in the light of her letter of resignation sent to Mr Jeetah, but right to hold that Mrs Ramkurrun had been summarily dismissed. Their Lordships are disposed to think that in observing as she did that
10. Be that point as it may, the Supreme Court concurrently found that there was in fact a summary dismissal and implicitly found the dismissal to have been unjustified, describing Mr Jeetah’s conduct as faute lourde (serious misconduct).
11. The relationship of the parties was governed by the Labour Act 1975 (the Act).
12. Pursuant to section 31 of the Act,
13. Section 34 deals with payment of severance allowance. Subject to presently immaterial exceptions the normal position as set out in section 34(1)(a) is that an employer must pay severance allowance to a worker on the termination of her employment if the worker has been in continuous employment with the employer for at least 12 months. Section 36 sets out the amount of severance allowance payable in normal circumstances. Section 36(7) provides that where the termination of employment is unjustified the court shall order that the worker be paid six times the normal amount. The court has a duty to do so; it is not a matter of discretion.
14. In dismissing
“However, it [the
(a) the appellant never accepted her resignation with three months’ notice but used it as a pretext in order to force on her an immediate resignation, which she did not accept. The appellant could have told the respondent that he accepted her resignation with immediate effect and that all her remuneration and dues would be paid during the notice period, but he never did so;
(b) the appellant refused to give her a transfer certificate which she required in order to preserve her length of service and her acquired rights;
(c) the appellant, behind the back of the respondent, requested the PSSA, as indicated already, to withhold, which it did, her salary for the months of November and December 1996 without furnishing any reason, thus giving the impression that she had been at fault;
(d) the appellant prevented the respondent from resuming work on two occasions, as indicated already.”
Although their Lordships consider that the better analysis is one of unjustified dismissal in terms of section 36(7) of the Act rather than one of faute lourde which would ordinarily involve a claim for damages rather than severance allowance, the facts upon which the Supreme Court found serious misconduct represent, if anything, an a fortiori case of unjustified dismissal.
16. As the Supreme Court said,
17. Even if, as Mr Ollivry submitted, there was some misunderstanding on both sides in relation to the need for a transfer certificate, and their Lordships are not persuaded that this was so, points (a), (c) and (d) relied on by the Supreme Court provided ample grounds for finding that Mrs Ramkurrun’s dismissal was unjustified. Indeed as regards point (c), section 30(4) of the Act provides that the employer is in breach of the agreement where he fails to pay the remuneration due. Hence
18. Their Lordships cannot accept