Monday, 19 March 2007

Premchandra Bissonauth v The Sugar Fund Insurance Board

Premchandra Bissonauth



The Sugar Fund Insurance Board





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Delivered the 19th March 2007

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Present at the hearing:-

Lord Hope of Craighead

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Lord Mance

Lord Neuberger of Abbotsbury

[Delivered by Lord Neuberger of Abbotsbury]

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This appeal from the Supreme Court of Mauritius, is brought by Mr Premchandra Bissonauth. It raises the issue whether his dismissal by his employer, the respondent Sugar Insurance Fund Board, was statutorily “deemed to be an unjustified dismissal” pursuant to section 32(2)(a) of the Labour Act 1975 (“the 1975 Act”). All references hereafter to sections are to sections of that Act.

The facts are as follows. The appellant was employed by the respondent from 1st December 1969, until his dismissal on 3rd October 1996. During this period of nearly 27 years, he had remained continuously in the respondent’s employment, with the exception of about thirty months in the late 1970s, when he took unpaid leave to study in England.

On 28th December 1991, while not in any way engaged in his work, the appellant was involved in a road traffic accident. This was immediately followed by a violent altercation between the appellant and the other party to the accident, which resulted in serious injury, including a broken leg, to the latter party. This led to criminal proceedings being brought against the appellant. Following a hearing, at which the appellant, among other people, gave evidence, he was convicted on 27th September 1996, of assault with aggravating circumstances. He was fined 2000 rupees (which we were told was the equivalent of around £30 on the basis of the current exchange rate) and ordered to pay 200 rupees costs. The appellant unsuccessfully appealed against this conviction.

The appellant had continued working for the respondent during the period between the incident and his conviction, and had indeed been promoted in 1994. However, on learning of his conviction, the respondent wrote to the appellant on 3rd October 1996, summarily dismissing him, without notice, compensation or severance pay, in order to “preserve the image and integrity” of the respondent. The appellant contends that this dismissal, without his having been afforded the prior opportunity to make representations to the respondent, infringed his rights.

His case turns on the proper meaning and effect of section 32. That section is in Part VI of the 1975 Act, which is headed “Termination of Agreement” and comprises sections 30 to 39. Section 31 is concerned with “Notice of Termination”, and effectively provides for minimum periods of termination.

Section 32 is headed “Unjustified Termination of Agreements” and it is necessary to set out subsections (1) and (2) in full:

“(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 of-

(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.

(c) 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”.

Neither the remaining subsections of section 32 nor section 33 are relevant. Section 34 is headed “Payment of severance allowance” and provides that, subject to section 35, “an employer shall pay a severance allowance” to an employee “who has been in continuous employment with him for a period of 12 months or more” where inter alia, the employer terminates the employment. Section 35 is headed “Exclusion of severance allowance”, and it is only necessary to refer to sub-section 1 in the present context:

“No worker shall be paid severance allowance where he is dismissed pursuant to section 32 (1) (b)”.

Section 36 is concerned with the “Amount of severance allowance” and subsection (3) lays down precisely how severance allowance is allowed to be calculated. However, Section 36(7) provides as follows:

“The court shall, where it finds that the termination of the employment of a worker employed in any undertaking, establishment or service was unjustified, order that the worker be paid a sum equal to 6 times the amount of severance allowance specified in subsection (3)”.

Following his dismissal pursuant to the letter of 3rd October 1996, the appellant issued proceedings against the respondent in the Industrial Court alleging wrongful dismissal, claiming three months’ wages in lieu of notice and a severance payment under section 36(7), which he estimated at over 4.2m rupees. The trial of that claim took place before His Honour Mr Magistrate A R Hajee Abdoula, over four disconnected days during 2000, and judgment was delivered on 20th July 2001. The appellant’s claim was dismissed. The Magistrate held that section 32(1)(b)(ii)(B) applied and that the appellant was therefore not entitled to a hearing under section 32(2)(a), as the grounds set out in the letter of 3rd October 1996 did not constitute a “fresh charge” against the appellant for the purposes of section 32. He also held that the acts of the appellant during the road rage incident were reprehensible and could bring “serious repercussions on the smooth running” of the respondent, and amounted to dangerous behaviour which was wholly inconsistent with his professional activities.

The appellant appealed to the Supreme Court of Mauritius, where his appeal was heard by Senior Puisne Judge the Honourable Y K J Yeung Sikyuen and Judge the Honourable K P Matadeen. In his appeal, the appellant contended that the Magistrate’s decision was wrong on two grounds, namely that (a) the respondent had acted wrongly in not granting the appellant a hearing, and (b) the respondent had failed to establish that, in all the circumstances, it could not have taken any course other than dismissing the appellant. In a reserved judgment given on 27th December 2002, the Supreme Court upheld the appeal to a limited extent. It decided, in agreement with the Magistrate, that the respondent had been entitled to dismiss the appellant, and that the appellant had not been entitled to a hearing under section 32(2)(a). Accordingly, his claim for a severance payment at the penal rate under section 36(7) was rejected. However, the Supreme Court determined that the appellant was entitled to 570,000 rupees (representing three months salary in lieu of notice), but that he was not entitled to severance pay at the punitive rate under section 36(7), or to claim for lost benefits including his housing loan, car loan and entitlement to purchase cars duty free.

On 29th January 2003, the Supreme Court granted the appellant leave to appeal against its decision to your Lordships’ Board.

Although other points were raised in the appellant’s written case, the only contention which was pursued on his behalf in argument was that, because he had not been “afforded… an opportunity to answer any charges made against him” within section 32(2)(a), his dismissal on 3rd October 1996 must “be deemed to [have been] an unjustified dismissal”, as a result of which he should be entitled to severance payment at the penal rate calculated in accordance with section 36(7).

The appellant’s case, now that it has been shorn of other arguments, is at least on the face of it, plain and simple. It is that section 32(2)(a) stipulates that, before an employer can dismiss an employee, it must give him or her an opportunity to answer the charge which may give rise to such dismissal, and if no such opportunity is given, then, however justified the dismissal might otherwise have been, the dismissal is deemed to be unjustified, with the inevitable consequence that the employee is entitled to severance pay at the penal rate calculated in accordance with section 36(7). If one reads section 32(2)(a) on its own at any rate, this argument seems to be unanswerable. However, one cannot, of course, interpret any provision in a statute on its own. It must be construed contextually. In this case, the respondent contends that section 32(2)(a) cannot be read as the appellant suggests, in the light of the provisions of section 32(1)(b)(ii) and its three subparagraphs which, for the sake of convenience, I will refer to as “category (A)” “category (B)” and “category (C)” respectively.

A number of different ways of reconciling the provisions of section 32(1)(b)(ii) and section 32(2)(a) have been advanced. Most of them involve implying some sort of limitation to section 32(2)(a) which, as I have mentioned, appears as a matter of ordinary language, to apply to any case where an employer proposes to dismiss an employee.

The primary argument advanced on behalf of the respondent is that section 32(2)(a) does not apply to a case falling within category (B) or category (C). Thus in the present case, where “the misconduct” has been “the subject of criminal proceedings”, so that category (B) applies, section 32(2)(a) is not in point. That seems to have been the construction favoured by the Supreme Court in this case, consistently with its approach in a number of earlier cases, e.g. (at least in one view) Mauritius Meat Authority v Bissoon [1991] MR 86.

In their Lordships’ view, this construction has two problems. First, it is hard to justify as a matter of language. As already mentioned, section 32(2)(a) appears to be plain in its effect, namely that it applies to all dismissals, and there is nothing in Section 32(1) which, at least expressly, suggests that it is not intended to apply in category (B) or category (C) cases.

Quite apart from this, it does not seem entirely fair, or in accordance with the purpose of section 32, that, simply because his misconduct had been the subject of criminal proceedings, an employee should be deprived of the opportunity which is afforded by section 32(2). It is not hard to imagine circumstances where an employee might be able to advance strong mitigating factors to his employer in order to explain why his activities which had led to a conviction, and which in the absence of those factors, might justify his dismissal, should lead his employer to conclude dismissal was not appropriate, or the only option – see section 32(1)(b)(i). (Indeed, in view of his long and apparently successful and unblemished record in employment and the arguably isolated and work-unrelated nature of the road rage incident - disgraceful though it was – the appellant may well say that this is just such a case). In other words if, as appears to be intended from its wording and from wider policy considerations, the legislature takes the view that an employee should have an opportunity to put forward a case as to why he should be permitted to remain in employment despite conduct which his employer considers may justify dismissal, it seems somewhat arbitrary that, simply because the conduct has been the subject of criminal proceedings, the employee should have no opportunity to put forward to his employer reasons why, despite his conviction, he should not be dismissed. The employer would be unlikely to be aware of all that was said at the criminal hearing, and, even if it was, it is unlikely that all the reasons as to why the employee should not be dismissed would have been raised – even as mitigating factors in relation to his sentence.

It was suggested on behalf of the respondent that this was not an unsatisfactory or unfair result from the point of view of an employee because the justification for any dismissal could be taken to the Industrial Court which would form its own view as to whether or not the employee had been properly dismissed (and in this connection it appears that the approach of the courts in Mauritius, in contrast to the approach of the United Kingdom courts, would be to substitute their own view for that of the employer, rather than simply considering whether the employer’s view was one it could reasonably have taken). The Lordships do not find this argument convincing, not only because it does not deal with the wording of section, but also because it is not even a very satisfactory answer in terms of fairness and justice. Section 32(2) is concerned to give an employee an opportunity of dissuading his employer from dismissing him in circumstances where he might otherwise be dismissed. In other words, the primary purpose of section 32(2) is to afford an employee the opportunity of keeping his job. All that the Industrial Court could do is to award him damages or severance pay (whether at the regular or penal rate) for having been unjustifiably dismissed, if he was not afforded the opportunity of having a hearing under section 32(2). In particular, the Industrial Court could not order his reinstatement.

The respondent also suggested that it was wrong to construe the 1975 Act in what one might characterise as a constitutional vacuum: it should be interpreted in the light of the Mauritius Civil Code. While their Lordships accept that section 32, like any other provision of the 1975 Act, has to be read in the context of the Mauritius Civil Code, that cannot justify departing from the natural meaning of the statute, unless there is a compelling reason for so doing.

The appellant’s primary case as the proper approach to the interpretation of section 32 was not so much contrary to, as a variation of, that of the respondent. The primary case of the appellant was that there would be some category (B) cases where a section 32(2) opportunity to answer would be appropriate and other category (B) cases where it would not be necessary. The Lordships do not find this a satisfactory interpretation either, and for similar reasons. First, it is difficult to arrive at such a conclusion from the actual words of section 32(2)(a). It might be possible to read into section 32(2)(a) an implied term that it only applied if it was reasonable, so that, following a conviction, an employer could dispense with a section 32(2) opportunity to answer, if “in good faith” he could take no “other course” than dismissal without giving the employee such an opportunity. However, in their Lordships’ view, that would really involve rewriting the section. Furthermore, there are practical objections to such an interpretation, in that it would introduce a substantial degree of uncertainty into the operation of the section: there would inevitably be room for disagreement in many category (B) cases as to whether the facts were sufficiently clear to dispense with the need for a section 32(2) opportunity to answer.

Another interpretation which was raised was that the criminal proceedings arising in category (B) case would be a hearing that satisfied the requirements of section 32(2). The Lordships do not find that to be a satisfactory interpretation either. The use of the word “he” in section 32(2)(a) indicates that it is the employer who is to give the employee the “opportunity to answer any charges”. Furthermore, it is very hard to believe that the provisions of section 32(2)(b) could have been intended to apply to criminal proceedings, which would be wholly outside the control of the employer.

Another interpretation which would involve implying a substantial limitation into section 32(1)(b)(ii)(B), is that a case only falls within category (B) if the misconduct in question has been the subject matter of a complaint by the employer, and is not, as in this case, wholly extraneous to the employment. That would be a simple and workable solution, but it does involve implying a severe limitation on what appear to be very general words in Section 32(1)(b)(ii).

As a matter of principle, it seems to their Lordships that, quite apart from the desirability of giving the words of section 32(2)(a) their natural meaning, it is conceptually unsatisfactory to invoke section 32(1)(b)(ii) in order to cut down the ambit of the very wide words of section 32(2)(a). The latter provision is not only expressed in what appears to be very wide and general terms, but is intended to give an employee who may be facing dismissal an important substantive right, namely to make out a case to his employer as to why he should not be dismissed. On the other hand, section 32(1)(b)(ii) is purely procedural: it is concerned to impose a short timescale, in effect a limitation period, within which an employer can exercise his right to dismiss the employee. It would be surprising if this procedural provision had the effect of significantly cutting down the ambit of the substantive and important section 32(2)(a).

Their Lordships consider that it is possible to interpret section 32 in a way which does not involve implying any terms, does no violence to the language used and produces a practical result, even if it may mean that an employer and an employee would sometimes have to work within tight time constraints.

If section 32(2)(a) applies in the case of all three categories in section 32(1)(b)(ii), it seems to their Lordships to raise no great problems. Category (A) speaks for itself: in any case where the exercise of the employee’s rights under section 32(2) leads to a hearing, the 7 days runs from the date the hearing is completed.

If section 32(2) applies to a category (B) case, the position would be as follows. Following the date on which “the employer becomes aware of the final judgment of conviction”, it must, if it has in mind dismissing the employee, offer the employee “an opportunity to answer any charges made against him” as required by section 32(2)(a). If the giving of that opportunity leads to anything that can be called “a hearing”, then the case falls within category (A) and not category (B), so that the 7 days under section 32(1)(b)(ii) only starts to run once that hearing is completed. If, on the other hand, the employee does not take advantage of the “opportunity to answer any charges” or answers them in such a way as to avoid the necessity of a hearing, then the case remains a category (B) case, in which case the employer’s right to dismiss would have to be exercised within 7 days of its becoming “aware of the final judgment of conviction”. In other words, section 32(1)(b)(ii) should be read as if the words “whichever is the later” were added in a new line after paragraph (C).

The only possible objection to this interpretation is that it will sometimes result in a very tight timetable. If there is to be no section 32 (2) hearing, then the time within which the employer has to give the “opportunity to answer any charges”, and the time within which the employee must provide such an answer, has to be severely restricted. This is because, if the employee gives no answer or an answer which indicates that no hearing is required or appropriate, then the case remains within category (B), so that the section 32(2)(a) procedure must be completed well within 7 days, for the employer to retain the right of dismissal.

Although that might appear to be a surprisingly tight timescale, it does not seem to their Lordships to be so unreasonable or impracticable as to justify rejecting this natural, and otherwise unobjectionable, reading of the section. In the first place, the purpose of section 32(1)(b)(ii) is plainly to impose a short time limit.

Secondly, all the employer has to do in order to comply with section 32(2) is to inform the employee of the fact that the employer is considering dismissing him because of the conviction and to ask the employee whether he wishes to make any representations; and any sensible employee facing criminal charges will be well aware of the risk that the employer may take this line if the employee is convicted and should therefore be ready to explain his position. If he does not do so promptly, then section 32(1)(b)(ii) appears to envisage that the employer can treat the case as a category (B) case. If the employee replies promptly, then the 7 day time limit contained in section 32(1)(b)(ii) is scarcely something of which he can complain. After all, the employer can decide on the basis of what the employee says in his reply, whether there should be a hearing, or whether the employer can reach a decision without further ado.

Thirdly, it appears likely that the majority of cases where an employee’s conviction could lead to his dismissal would be where the offence was committed in the workplace, and indeed had been referred to the police by the employer. In such circumstances, the short timetable envisaged in category (B) cases could be expected to present the employer with no real inconvenience. Interestingly, this appears to accord with the appellant’s employment contract with the respondent in the present case. Clause 25(v) and (vi) of that contract provide that, in the case of the employee being guilty of criminal conduct within the workplace, the employer should refer the matter to the police, and, if a conviction ensues, the chairman of the respondent is to decide on the appropriate course so far as the employee’s future employment is concerned.

Their Lordships would add that it seems to them that, in the light of this conclusion, an employer contemplating dismissal of an employee following his conviction would be well advised to inform the employee of this very promptly, and to give the employee an opportunity to answer. At the same time, an employer would also be well advised to warn the employee that he must provide any answer very promptly, because of the 7 day time limit, and that the employee should say whether he wants a hearing, and, if so, why. While it would be wrong to express the view too firmly, because it is so fact-sensitive, their Lordships would also have thought that, particularly bearing in mind the provisions of section 32(1)(b)(i), an employer who received representations from an employee as to why he should not be dismissed, would very often be well advised to have a hearing, particularly in the light of section 32(1)(b)(i) – all the more so if the employee specifically asks for a hearing.

As to category (C) cases, they would arise where the misconduct has not involved criminal proceedings, and where an employee has either turned down the “opportunity to answer the charges”, or has expressly said that he does not want a hearing, or has made representations which the employer is satisfied do not require a hearing.

In light of their conclusion as to the proper construction of section 32, their Lordships accordingly conclude, that as the respondent did not offer the appellant the opportunity to answer the charges against him under section 32(2)(a) before dismissing him on 3rd October 1996, the appellant’s dismissal is deemed, for the purposes of the 1975 Act, to be unjustified, and consequently he is entitled to a severance payment assessed in accordance with section 36(7).

Their Lordships think it right to mention two further points. First, it was suggested on behalf of the appellant, that, in light of its decision that the appellant had been lawfully dismissed pursuant to section 32(1)(b), the Supreme Court should not have ordered that he recover any payment in lieu of notice in the light of the provisions of Section 35(1). While the force of that point, at least as a matter of pure statutory construction, is self-evident, it is a very unattractive submission in the present case, given that it was part of the appellant’s argument before the Supreme Court that, even if he was lawfully dismissed pursuant to the provisions of section 32(1)(b), he should be entitled to such a payment. Quite apart from this, it does appear to their Lordships that, in the light of the reasoning of the Supreme Court in the earlier decision of Griffiths v Mauritius Touring Co Ltd [1984] MR 90, the decision to award the appellant some severance payment may have been justifiable. However, in view of their Lordships’ conclusion on the effect of section 32, it is unnecessary for them to decide the point in the instant appeal.

Secondly, there was some argument as to whether section 32 (1) and/or (2) only applied to conduct which amounted to faute lourde or whether they also extended to cause reele et serieuse de licenciement, a point considered in the Supreme Court. The difficulty identified in the previous paragraph of this judgment might indeed disappear if it were concluded that Section 31 (1) (and so Section 35 (1)) is confined to cases of faute lourde, whereas Section 32(2) requires an opportunity to answer all and any nature of charge (whether of faute lourde or cause reele et serieuse or whatever). Again, it is unnecessary to decide the point for the purpose of resolving the present appeal. While their Lordships would in principle be prepared to give guidance to the courts of Mauritius on that issue in relation to future cases, they feel that the point has not been sufficiently and fully addressed to enable them confidently to express a view on it.

In all the circumstances, their Lordships consider that this appeal should be allowed, and that the respondent should pay the appellant’s costs.