[2011] UKPC 32
Privy Council Appeal No 0022 of 2010
JUDGMENT
Adamas Limited (Appellant)
v
Mrs. Yong Ting Ping How
Fok Cheung (Respondent)
From the Supreme Court of Mauritius
before
Lady Hale
Lord Mance
Lord Clarke
JUDGMENT DELIVERED BY
Lord Mance
ON
9 August 2011
Heard on 28 June 2011
Appellant
Mr Michel Ahnee
Alexander Robson
(Instructed by M A Law (Solicitors) LLP)
Respondent
Adam Solomon
(Instructed by Blake Lapthorn Solicitors)
LORD MANCE:
The appellant makes jewellery and operates duty free
shops, one at Floreal towards the west of the island and another at Belle Mare
on the east coast. The respondent, Mrs Cheung, was employed by the appellant
from 2 September 1986 until 30 June 2002, when she was dismissed. She brought
proceedings in the Industrial
Court for unjustified dismissal, and was awarded a
total of Rs 1,013,443.16 on 26 September 2007. In addition to 3 months wages in
lieu of notice, the bulk of the award consisted of Rs 950,543.33, representing
a sum, payable for unjustified dismissal under section 36(7) of Labour Act
1975, equal to six times the normal severance allowance (which is half a
month’s remuneration for every 12 months served). The award was upheld, by
different reasoning, in the Supreme Court (Balancey and Domah JJ) on 12 May
2009. The appellant now appeals as of
right to the Board, formal leave being given by the Supreme Court on 8 June
2009.
1. Mrs
Cheung was initially employed as a sales person based at the appellants’
Floreal shop, paid by commission. She was promoted to senior sales
representative in August 1996. With effect from 1 July 2000, the appellants
introduced a new commission scheme, with two elements, individual commission
(0.3% on individual actual sales) and team effort commission, but by letter
dated 15 July 2000 they agreed that Mrs Cheung would receive a fixed monthly
commission of Rs 5000 and form part of the new commission scheme. By letter
dated 24 November 2000, Mrs Cheung was further promoted to assistant shop
manager, on fresh terms providing her with a basic monthly salary of Rs 15,000.
After an initial three months’ probationary period, she was to have for her
personal use a company car, which the company would maintain. The letter
further provided that:
“Any bonus & commission received is given strictly
on a discretionary, and gratuitous basis, and do not bind the company in any
way whatsoever. You will form part of the existing commission scheme approved
by the company.”
2. Her
new duties and responsibilities were described in an annexure as follows:
“As Assistant shop Manager of Adamas Ltd, your duties
and responsibilities will consist of (but not limited to) the following:
(a) To
manage the Duty Free shop at Floreal and all its branches, in a manner
consistent with the policies of the company and as directed by the directors.
(b) To
ensure the smooth running of the shops in its day to day operations.
(c) To
ensure that the inventory is well displayed and proper ordering is made on a
timely basis in consultation with the directors and assist the directors in
merchandise selection and ordering.
(d) To
ensure that procedures are being followed by everyone in the shops as per their
respective duties and responsibilities and to ensure that everyone adheres to
these.
(e) To
ensure that there is adequate human resources at any time to provide customer
service to visitors and clients.
(f) To
provide constant training to sales representatives
(g) To
undertake any other duty and responsibility suitable to your post as may be
assigned to you by the Company.”
3. On 21
September 2001 the appellants wrote that, due to what they ascribed to an
accounting error, they had continued to pay Mrs Cheung a monthly fixed
commission of Rs 5000 after her promotion to assistant shop manager. Mrs Cheung
replied on 25 September 2001 that she was
“not agreeable to your decision to unilaterally cancel
the monthly fixed commission. As you are aware, the latter was granted to me so
as to compensate my “manque à gagner financier” following the implementation of
the new commission scheme in July 2000. This has been reiterated in your letter
of 24 November 2000.”
Nevertheless, on 10 October, Mrs Cheung was paid only
her basic salary and commission of Rs 3190.60, which she received under protest
by letter dated 22 October 2001.
4. By
letter dated 24 October the appellants informed Mrs Cheung that she was being
transferred to work at their Belle Mare shop with effect from 5 November 2001,
with an increased travel allowance and normal overtime paid for any increase in
working hours required. By reply dated 6
November Mrs Cheung expressed her surprise at this previously unannounced move,
which seemed to her “very much to be a punitive transfer in view of my recent
dispute with management concerned fixed commission”, and pointed out that the
monthly turnover at Belle Mare was only about Rs 234,000 compared to Rs 8.5m at
Floreal. She also asked for clarification of her working hours and the position
regarding overtime. The dispute continued with Mrs Cheung maintaining her
position in further correspondence on 15 November (again asking for
clarification of her working hours) and 26 November (and the appellants’ group
operations manager, Mr Benjamin Samba, reiterating the appellants’ stance on
commission on 13 December).
5. Against
this background arose the disputes relating to the scope of Mrs Cheung’s duties
as assistant shop manager which eventually led to her dismissal. Duty free sales sold at either shop could
only be delivered to their buyers at the airport on departure. The appellants
had therefore to arrange for their delivery to the airport, and, before any
sale, the procedure was for the sales representative to check with the
appellants’ headquarters that this could be done. The person responsible for
collecting deliveries from the Belle Mare shop was a Mr Lutchana, a senior
sales representative, who had a company car for this purpose. From 3 to 8
December 2001, he was on leave in the Seychelles. The appellants arranged for
him to be substituted by Mr Lafleur, another salesman. However, Mr Lafleur also
had his own marketing to undertake.
6. So it
came about that on 3 and 5 December 2001 the manager of the Belle Mare shop, Mr
Steve Rayapoullé, asked Mrs Cheung to convey items of jewellery sold from Belle
Mare to the Floreal shop, from which they could be conveyed to the airport. Mrs
Cheung lived in the westerly part of the island so that the journey was not as
such off her route at the end of the day, and she undertook the task. But when
she was asked for a third time by Mr Rayapoullé on 6 December, and then also
spoken to by Mr Samba, she refused. In a letter dated 13 December maintaining
that she had been obliged to undertake the delivery under clause (g) of her
duties and responsibilities and giving her a formal warning, Mr Samba said that
his request had been made because she had been “the only available person with
a company car”. (In his oral evidence,
he accepted that there had in fact been at least one other car available on 6
December.)
7. Mrs
Cheung replied in detail by letter dated 20 December. She said that she had
always discharged her duties, which did not include deliveries; Mr Lutchana
had, before going on leave, told her that he had made arrangements with Mr
Lafleur for deliveries, which either he or Mr Chiniven would make. She had only
undertaken the deliveries on 2 and 5 December at Mr Rayapoullé’s insistence,
and he had referred to his request on 5 December as a “favour” and promised in
future to send Mr Chiniven or Mr Perumal. There had been other available
vehicles and drivers at Floreal on 6
December. The drive from Belle Mare to Floreal after
the shop closed was a long one; she did not feel safe and could barely drive at
night; and she had no means of communication in case of danger. Alternative
means of delivery had been found on 7 December, when she had felt ill. She went
on to remind Mr Samba that her requests for clarification of the position
regarding commission as well as overtime remained unanswered.
8. Mr
Samba responded on 27 December to Mrs Cheung’s letter of 20
December. In paragraph A, he complained that her
“attitude towards management has now become very alarming and rude” and said
that she was free to take whatever steps she saw fit if she felt her transfer
had been punitive; in paragraph C, he said that the management’s position on
commission had already been communicated; and in paragraph D he said that shop
managers were obliged to work outside normal hours if needed without extra
remuneration, that the company had been “exceptionally willing to offer her a
gratuitous payment for extra hours generally required by the Belle Mare Shop
base”, but that “in view of your attitude and what can only be interpreted as a
non-acceptance of the offer the company has decided to withdraw the offer”. In
between these paragraphs appeared paragraph B, in these terms:
“ You are reminded that as Assistant Shop Manager it
is your duty to manage the shop in Belle Mare as well as perform any other duty
suitable to your post as may be assigned to you by the company and that any
lack of or mismanagement [sic] is ultimately your responsibility. Should you
feel unable to carry out these duties or you would like to return to the post
of sales representative please inform me immediately”
9. Relations
continued at a low point. A further letter of warning was given to Mrs Cheung
on 4 February 2002, for allegedly leaving a necklace in the shop window over a
weekend. On 20 and 26 February, Mrs Cheung made complaints to the Ministry of
Labour and Industrial Relations in respect of failure to pay for overtime at
Belle Mare, non-payment of the fixed commission as well as her “punitive
transfer” to Belle Mare, complaints which the Ministry on 10 May referred for
conciliation and arbitration under section 82 of the Industrial Relations Act
1973. On 15 April a third letter of warning was given to Mrs Cheung for
changing two tyres on her company car and having the bill passed to the
appellants as an expense. In response, Mrs Cheung said that the garage had
advised her that the tyres were worn out and in poor condition, that she had
obtained prior authorisation from her superior, Mr Rayapoullé, who had
personally given the garage oral instructions, and that this was in accordance
with a circular issued by the appellants’ managing director. Mr Samba took
issue with these points, maintaining that any such authorisation could only
come from him, although he might reconsider the issue of payment if the tyres
were returned to him for inspection. (Ultimately, it appears that payment was
made.)
10. On 25
May Mrs Cheung was again asked by Mr Rayapoullé and refused to convey jewellery
to Floreal. On 28 May the appellants “after due consideration of the above
incident and also your past conduct” suspended her and initiated disciplinary
proceedings. On 4 June, they gave notice of disciplinary charges that she did
on 25
May
“1. Disobey the instructions of Mr Steve Rayapoullé to
bring a sold parcel of jewelry from the Belle Mare shop to Floreal for
shipment.
2. Threaten to cancel that sale of jewelry if nobody
was sent to pick up the parcel from the Belle Mare shop.”
They also gave notice that they might “inter alia also
produce” the contract of employment and the letters of warning dated 13
December 2001, 4 February and 15 April 2002. Disciplinary hearings were held on
14 and 18 June, and Mrs Cheung was notified on 20 June that the charges had
been found proved, and that management had concluded that she had committed a
gross misconduct warranting dismissal.
11. After
hearing evidence and submissions on 22 February 2007, the Industrial Court (Mr
A R Hajee Abdoula) on 26 September 2077 reached a different conclusion. Unfortunately, the Industrial Court did so
under the misapprehension that the disciplinary charges related to, and the dismissal
in June 2002 had followed from, the refusal to deliver jewellery on 6 December
2001. To compound the confusion, it appears also to have thought that the
episodes of the tyre change, the cessation of payment of the fixed commission,
the industrial relations complaint and the transfer to Belle Mare took place in
that order and prior to the 6 December 2001. Nevertheless, the Court’s findings
are not without all significance. It found Mrs Cheung’s explanations to be
plausible, and it held that no “instructions” had been given by Mr Rayapoullé,
that he had on 2 and 5 December requested what he himself had qualified as
“favours” from Mrs Cheung, and that “For reasons best known to himself he
attempted to obtain yet another favour from [her] when there were already at
Floreal half a dozen of vehicles lying in waiting”. The Industrial Court concluded by saying that
“At best, if there was any [instruction], it could only have been by way of a
request for a favour which [Mrs Cheung] was perfectly entitled to refuse”.
12. On
appeal, the Supreme Court addressed the question whether the Industrial Court’s
“misapprehension regarding the two incidents was of such a nature as to vitiate
his conclusion”. It concluded that it was not for these reasons:
“(a) the nature of the dispute arising from the facts
which were themselves identical;
(b) the
issue between the parties in both incidents was the same; and
(c) it is
not unreasonable to assume that the insertion of 6 December 2001 for 25 May
2002 may be an unfortunate lapsus calami, not going to the root of the
determination. Indeed, the only difference between the two incidents was that
there was a lapse of 8 months between and that the second incident occurred
after a formal warning issued to the respondent by letter dated 13 December
which respondent replied by 20 December. Be that as it may, account should be
taken of the fact that the crucial controversy between them whether the
conveyance of parcels did or did not form part of the scheme of service of the
respondent had remained unresolved.”
The Supreme Court also dealt with further submissions,
that the real issue was not whether Mr Rayapoullé had given instructions, but
whether Mrs Cheung’s duties covered conveying jewellery, that, even if they did
not in December 2001, they came to do so, as a result of her continuing in the
appellants’ employment after December 2001, and that the magistrate had not
addressed the charge relating to a threat to cancel the relevant sale of
jewellery. The Supreme Court saw the absence on the evidence of any instructions
in either December 2001 or May 2002 as indicating that the request made in May
“continued to be one for a favour rather than one for legal compliance”. It saw
the case throughout as turning on the question whether the delivery of
jewellery “formed part of the contract of employment”, rather than as one of
unilateral change of terms of employment; and it noted in this connection that
there had been no other incident between 6 December and 25 May where such a
condition had been imposed, and said that “the ball had fallen in the camp of
the company to resolve that issue” after Mrs Cheung’s letter of 20 December
2001. Finally, it noted that Mr Rayapoullé’s evidence had not supported the
charge of threatening to cancel the sale.
13. Before
the Board, Mr Ahnee in his attractive and well thought-through submissions on
behalf of the appellants contends that neither court below has correctly
appreciated the full factual position or the applicable law. However, the main
focus of his case was that, whatever the position may have been in December
2001, Mrs Cheung was by May 2002 well-aware that the appellants required her as
assistant manager to assist with deliveries when requested, and must, so far as
necessary, be taken to have accepted that the appellants were entitled to
require this.
14. So far
as concerns the position in early December 2001, the Board sees no reason to go
behind the concurrent findings of the courts below. These were that the
requests made by Mr Rayapoullé and accepted by Mrs Cheung were by way of
favours, rather than instructions as they would have been if based on any legal
duty. Further, according to the official
court translation of the evidence put before the Board, all that even Mr Samba
said in chief was that, when he spoke to Mrs Cheung on 6 December, “I asked her
to do a favour because we had a problem” (“Mone dire li rende ene service
parski nou ti dans ene probleme”).
15. Mr
Ahnee submits however that the Supreme Court failed to appreciate the
significance of events subsequent to 6 December 2001; the Supreme Court
referred to the correspondence dated 13 and 20 December, but erred in
suggesting that the ball lay thereafter in the appellants’ court; this was to
overlook paragraph B of Mr Samba’s reply of 27 December; further, the Supreme
Court failed to attach any significance to the fact that Mrs Cheung remained in
the appellants’ employment from December 2001 onwards and the absence from her
industrial relations complaint in February 2002 of any reference to any issue
regarding jewellery deliveries.
16. The
correct legal analysis is, Mr Ahnee submits, that, even if Mrs Cheung was not
originally obliged to delivery jewellery, she was by the appellants’ letters
dated 13 and 27 December, made aware that this was required of her as a matter
of duty rather than favour, and accepted this by continuing in employment
without further objection. In support of this analysis, Mr Ahnee relies before
the Board (as he did before the Supreme Court) upon the reasoning in the
decisions of the Supreme Court in Periag v International Beverages Ltd. 1983 MR
108, The Constance & La Gaiété S E Co Ltd. v Bhungshee 2000 SCJ 67 and Joseph v Rey & Lenferna Ltd. 2008 SCJ
342.
17. The
issue in all these three cases was whether there had been a constructive dismissal.
In Periag the employee was claiming severance allowance on the basis that he
had been constructively dismissed by being demoted to salesman driver from his
previous post of chief salesman driver. In its reasoning in Periag, the Supreme
Court considered English law caselaw “useful as a guide to illustrate the
general direction taken by judicial thinking in England in order to reach just
solutions in industrial disputes and [as showing] a similarity in the direction
taken by French and Mauritian judicial thought”. It cited in this connection
Lord Denning’s well-known dictum in Western Excavating (ECC) Ltd. v Sharp
[1978] 1 QB 761, 769C that the employee “must make up his mind soon after the
conduct of which he complains: for, if he continues for any length of time
without leaving, he will lose his right to treat himself as discharged”. It
should however be noted that Lord Denning prefaced this dictum by recording
that - the conduct must “be sufficiently serious to entitle him to leave at
once” and followed it with a sentence saying “He will be regarded as having
elected to affirm the contract”.
18. Although
the Supreme Court in Periag found some value in English caselaw, it went on
understandably to say that, since the matter was “governed by our own specific
Labour law, it is best to look to our own law and the cases decided in the
context of that law in order to find precise solutions”. On the point in issue
before it, it was able to rely directly upon Mahasing v The Tea Development
Authority 1980 SCJ 169. However, it added that the conclusion in Mahasing that
an employee could not remain in employment and claim severance pay for
constructive dismissal seemed “unimpeachable” for a further reason, namely
that:
“… since under the general principles of our law of
contract a worker is entitled to treat his employment agreement as at an end in
circumstances where his employer commits a breach of such a kind as to entitle
the worker to do so, the worker must elect whether to treat his employment
agreement as at an end and terminate it or to overlook the breach and stay in
his employment under changed terms. He may protest or take some little time or
do both before making his election and taking a final decision. He must,
however, make his election. Otherwise his employment links will not be severed
and he will be regarded as being in “continuous employment. In this respect,
both English and Mauritian case law have reached the same solutions.”
Mr Ahnee relies in particular on the words “stay in
his employment under changed terms”.
19. In the
case of The Constance & La Gaiété a watchman was in August 1993 transferred
to his employers’ Belle Mare section, where he would be expected to do night
shifts as well as the day shifts which he had until then had. He undertook night shifts under protest for
some six months, but then claimed to have been constructively dismissed. The
Supreme Court held, first, that he had had - no “acquired right …. to work only
on day shift” and had failed to establish that his transfer to the new section
“constituted a substantial modification of his term of service” but, secondly,
that, even if one were to assume that the change was improper, he must be
deemed to have accepted the modification, and his decision to quit in February
1994 was a resignation, not a constructive dismissal. The Supreme Court cited in this connection
all but the last sentence of the passage from Periag quoted above.
20. In the
third case of Joseph, the employee had been manager of a department with
responsibility for sales, marketing and administration as well as technical
aspects, but, after a takeover of another company, a co-manager was appointed
in respect of the former aspects, while his activity was limited to the
technical. It was found on the facts that he had accepted the change without
protest and had worked for a month, before deciding to leave and found his own
company. His claim for constructive dismissal was dismissed. The Supreme Court
said that:
“In a case of constructive dismissal, the employee’s response
to the employer’s conduct is an important factor. The employee must be careful
that his response does not imply a willingness to accept the new conditions. He
must not stay on in circumstances which imply that he does not regard his
employer’s conduct as entitling him to terminate his contract of employment.”
The Court went on to refer to the passage in Periag
and Lord Denning’s dictum in Western Excavating, and to say that “In the
present case, the appellant’s lack of response to the new terms clearly showed
that he had initially accepted the new conditions and remained in employment
before changing his mind must later.”
21. In each
of these three cases, there was no accepted constructive dismissal, because the
employee had, at least by conduct, accepted the new post or terms which the
employers had assigned and did not treat the change made as repudiatory or
(therefore) as a constructive dismissal.
22. In none
of these cases was the situation considered of a change of the nature or terms
of employment, which although improper was not sufficiently serious to be
repudiatory or therefore capable of constituting a constructive dismissal. In
none of them was the situation considered of an announced change of terms
which, although repudiatory, did not call for any immediate response or action
by the employee, who could and did continue to perform his or her original job
as if no change had been requested.
23. In the
present case, the Board considers that two questions arise which are not,
therefore, covered by these previous decisions. First, were the appellants in
Mr Samba’s letters of 13 and 27 December 2001 insisting on a change which was
repudiatory, in the sense that Mrs Cheung could, if she had wished, have
brought her employment to an end on the ground that she had been constructively
dismissed? Secondly, assuming that the change was repudiatory, was Mrs Cheung
obliged to treat it as such, bearing in mind that she could perform her
contractual duties (as she correctly saw them) perfectly adequately? Could she not simply await and then refuse
any instructions to deliver jewellery that might be given, leaving it to the
appellants, if they wanted, actually to dismiss her and thereby expose
themselves to her present claim for unjustified dismissal?
24. On one
view, the words “stay in his employment under changed terms” used in Periag and
later cases might be read as suggesting that any employee, who continues in
employment after any breach by his or her employer consisting of a requirement
to do work outside the scope of the original employment contract, thereby
accepts the new conditions. But this would not represent a rational legal
position. If the change demanded was, although outside the scope of the
original contract, so minor as not to be repudiatory, the employee would have
no right to treat him or herself as constructively dismissed. It could not be
right in such circumstances to treat an employee as having waived any claim for
damages for the breach. The Board understood Mr Ahnee to accept that whether
conduct is sufficiently serious to justify termination of a contract always
depends on an analysis of the particular circumstances. It may be open to
question whether the change proposed in this case was repudiatory, when Mrs
Cheung could simply refuse to undertake deliveries if and when asked. But, even
if one assumes that most if not all unilateral changes of job or terms by an
employer including the present would be repudiatory if outside the scope of the
original contract, the Board sees no reason why an employee, faced with an
employer’s demand for what the employee regards as unjustified changes, should
then be obliged to treat the contract of employment as terminated on pain of
being held, otherwise, to have accepted such changes. Where, as here, the
original contractual job continues to exist and to be capable of performance by
the employee, the employee can continue to perform; it is the employer who in
such circumstances has to decide what stance to take.
25. The
views expressed by the Board in the previous paragraph are reinforced by a
consideration of the treatment of the subject in Introduction au Droit du Travail
mauricien (1995) by M D Fokkan (a lecturer at the University of Mauritius). Mr
Ahnee helpfully and properly directed the Board’s attention to this work. In it
M. Fokkan discusses in some detail at pp 145-148 the legal position arising
where an employer introduces a change falling outside the original contract
(“une modification substantielle” as opposed to the mere “modification
accessoire” occurring when an employer introduces revised arrangements falling
within the scope of the original contract). Starting with the proposition that
a modification substantielle “requiert impérativement le consentement de
l’employé”, Mr Fokkan then cites the passage quoted above from Periag, which he
discusses as follows:
“ L’employé
peut soit refuser ou accepter la modification. En cas d’acceptation il y a
novation de l’obligation ayant fait l’objet de la modification. Aucune des deux
parties ne peut y revenir. Une novation requiert en principe une manifestation
de volonté valable et libre. …….
En cas de
refus explicite, l’employeur peut soit faire marche arrière et maintenir les
conditions convenues à l’origine dans le contrat ou alors insister sur celle-ci
qui mènera probablement vers un licenciement de l’employé, l’employeur ne
pouvant pas imposer la modification à celuici. Le refus peut être un refus
exprès ou alors s’exprimer par le comportement de l’employé. Plusieurs
hypothèses sont ici possibles. La première consiste pour l’employé à prendre
acte de la rupture et à s’adresser à la cour pour faire reconnaître le licenciement,
qu’on qualifie alors de “constructive dismissal”. La seconde consiste pour
l’employé à cesser de travailler sans toutefois saisir le tribunal. Il convient
ici à ce que l’employé fasse bien connaître son intention afin d’éviter qu’elle
ne soit interprétée come un démission. Il faut toutefois faire ressortir qu’une
“démission ne se présume pas et ne peut résulter que de la volonté claire et
non équivoque du salarié de mettre fin au contrat de travail.” Le simple fait
de cesser de travailler ne saurait donc en luimême être interprété comme une
démission. La jurisprudence Automobile Grandin, examinée plus haut, est
probablement valable ici également. Afin d’éviter que cette situation reste en
suspens, l’employeur voudra probablement prendre acte d’une rupture. Dans la
mesure où le refus de l’employé est légitime, ce refus ne peut être clairement
la cause de la rupture. La responsibilité de la rupture demeure avec
l’employeur, l’acte de celui-ci étant alors qualifié de licenciement.
Il existe
toutefois une dernière situation, celle où l’employé ne procède pas à un
“election” mais continue malgré tout à travailler. Cette situation ne peut se présenter en
vérité que dans les cas où la modification ne requiert pas la collaboration de
l’employé, tel par exemple les modifications dans la rénumération. Y a-t-il un
consentement tacite à la modification empêchant éventuellement l’employé
d’invoquer la rupture? “He may protest or take some little
time before making his election...He must, however, make his election.” L’arrêt
Periag peut être interprété de deux façons. Premièrement, puisque l’initiative
de la rupture revient à l’employé, si celui-ci continue à travailler, et cela
même après avoir protesté, il pourra éventuellement (après le “little time”)
être considéré comme ayant accepté la modification: “First since under the
general principles of our law of contract a worker is entitled to treat his
employment agreement as at an end and terminate it or to overlook the breach
and stay in his employment under changed term.” Cette approche est confirme à l’ancienne jurisprudence
française pour laquelle “il appartient au salarié de prendre acte de la
rupture, sans pouvoir exiger le maintien des conditions antérieures” (Soc., 21
janvier 1987, Bull, V, no.33) et que, s’il continue à travailler, il “n’a pas
usé de son-droit de faire constater la rupture aux torts de l’employeur” et
doit donc être présumé avoir accepté les nouvelles conditions de travail (Soc.
9, 10 et 23 avril 1986, Dr.Soc., 1986.869). Rivero & Savatier désapprouvent
cette jurisprudence car “cela obligeait le salarié refusant la modification de
son contrat à prendre l’initiative de la rupture” alors que ça aurait dû être à
l’employeur de tirer les consequences de son acte. Une autre lecture de l’arrêt
Periag est toutefois possible. La question qui était posé à la Cour était si un
employé pouvait avoir droit à l’indemnité de licenciement s’il n’y avait aucune
rupture du contrat, celui-ci continuant à travailler dans l’entrprise. A quoi
la Cour répond par le négative. L’éligibilité à ‘indemnité de licenciement
n’intervient qu’en cas de rupture du contrat: “the payment of severance
allowance presupposes the ending of the employment relationship and cannot
arise unless the worker is no longer employed by his employer.” Toute
inteprétation de l’arrêt Periag devrait ainsi être limitée à la réponse que
l’arrêt donne à cette question. Le simple fait de continuer à travailler dans
l’entreprise n’implique pas ainsi nécessairement une acceptation de la
modification. C’est en effet la solution maintenant retenue en France par la
Cour de cassation, 8 octobre 1987 (Raquin et Trappiez c. Société Jacques
Marchand). Il revient en effet à l’employeur de prendre acte du refus de
l’employé et de licencier celui-ci. La simple poursuite du travail en
elle-même, alors que l’employé aurait initialement refusé la modification, ne
saurait être interprétée comme une acceptation tacite. De par son état de
subordination, l’employé ne fait ici que subir la modification sans pour autant
l’accepter. Dans l’espèce Raquin, l’employé a pu ainsi demander un rappel de
son salaire sur environ une dizaine d’années.”
26. M
Fokkan thus starts with a clear statement that an employee can refuse or accept
a modification of the contract of employment. M. Fokkan goes on to say that “En cas d’acceptation il
y a novation de l’obligation ayant fait l’objet de la modification. That
indicates (since the parties have not changed) a variation of the particular
obligation the subject of the change. In that event “Aucune des deux
parties ne peut y revenir”. But, as M. Fokkan rightly goes on, “Une novation
require en principe une manifestation de volonté valable et libre” – a
variation requires in principle a manifestation of valid and freely expressed
will. In the
Board’s view this is the underlying principle. As to the decision in Periag, M
Fokkan takes the view which the Board has indicated in paragraph 25 above that
it prefers; he notes, as the Board has in paragraphs 17-19 above, that Periag
was only concerned with the question whether an employee who decides to remain
in employment after a constructive dismissal can claim severance pay, and he
states that “the simple fact of continuing in employment in the enterprise does
not necessarily imply an acceptance of the modification”. As this recognises, a manifestation of will
may in some circumstances be implied from conduct, but the mere fact of
continuing to perform according to the original contract does not manifest any
acceptance of a proposed modification.
27. In
support of this view, M Fokkan is able to cite both French academic opinion
(Profs Rivero and Savatier) and the modern French authority of Raquin et
Trappiez c Société Jacques Marchand (8 October 1987, No de pourvoi: 84-41902
8441903). In this latter case, an employer sought unilaterally to vary
employees’ remuneration and the Cour de cassation said:
“Attendu
que, pour débouter MM. Raquin et Trappiez de leur demande en paiement de
rappels de salaires et de sommes représentant l’incidence qui devait en
résulter sur le montant des indemnités de rupture et de la prime annuelle, la
cour d’appel énonce que s’il n’appartient pas au salarié, qui refuse de donner
son accord à la réduction de salaire, d’imposer à l’employeur le maintien des
conditions antérieures, en revanche il lui incombe de tirer les conséquences de
ce désaccord en prenant, s’il l’estime utile, l’initiative de la rupture du
lien contractuel ; Attendu qu’en statuant par ces motifs, alors que
l’acceptation par MM. Raquin et Trappiez de la modification substantielle
qu’ils avaient refusée, du contrat de travail ne pouvait résulter de la
poursuite par eux du travail, et alors que c’était à l’employeur de prendre la
responsabilité d’une rupture, la cour d’appel a violé le text susvisé”
28. Earlier
Cour de cassation authority might be read as taking a more rigid line. M.
Fokkan cites a decision of 21 January 1987 (No de pourvoi 84-40956) for its
general statement that, in a case where an employer makes a modification of a
substantial element of the contract, it is up to the employee to treat the
contract as at an end, without being able to insist on the maintenance of the
previous terms. Both the decision on 8 October 1987 in Raquin et Trappiez and
the earlier decision of 21 January 1987 concerned very briefly stated facts,
very far removed from the present : in Raquin et Trappiez, it appears, a change
of remuneration, resulting in a loss of income which the employees protested,
although continuing to work for some ten years; and, in the earlier decision,
it appears, a restructuring of remuneration, which the employee was again said
to have protested, although continuing to work for some six years.
29. It is
unnecessary to consider the facts or outcome in either Cour de cassation
decision, or how any comparable case might be resolved in Mauritius. The facts
of the present case lie within a much smaller compass and time-scale. What
matters for present purposes is the general principle under French law, and in
this respect the Board prefers the principle stated in the later case, Raquin
et Trappiez. More recent authority, again in the area of reduction of salary,
also speaks in terms consistent with Raquin et Trappiez: see Société Roneo (31
October 2000, No de pourvoi 98-44988 9845118), where the Cour de Cassation
stated that modification of a contract of employment by an employer, for
whatever reason that might be, requires the consent of the employee.
30. Mr
Ahnee acknowledged in his submissions that a similar approach applies under
English law, where silence without more does not imply consent. But Mr Ahnee
submitted that Mauritian social and labour conditions could justify a different
approach. The suggestion is however unspecific and unsupported. The civil law
of Mauritius can be expected to take close account of the development of French
civil law, and in Periag itself the Supreme Court saw a similarity in the
direction of English, French and Mauritian judicial thinking, and indeed
believed that English and Mauritian caselaw had reached the same solutions in
this area.
31. In the
light of the Board’s conclusions regarding the law, the critical question is
not simply whether Mrs Cheung remained in the appellants’ employment after the
appellants had made clear that they expected her to undertake deliveries as
part of the contractual duties. It is whether, on the basis that this was not
originally within the scope of her contractual duties and not capable of being
made so under clause (g) of her duties and responsibilities, she ever,
expressly or impliedly, agreed to a variation of her contract so as to bring
deliveries within the scope of her duties or of clause (g).
32. As the
Board has said, Mr Ahnee placed heavy reliance in this connection on the
absence of any reply by Mrs Cheung to Mr Samba’s letter dated 27 December, of
which, he points out, the Supreme Court also made no mention in its judgment..
The Board notes, however, that, in the appellants’ letter dated 4 June 2002
notifying Mrs Cheung of the disciplinary charges, the only document relating to
the December incident mentioned was the letter of warning dated 13 December. To
that Mrs Cheung responded in no uncertain terms on 20 December, making very
clear both her rejection and the reasons for her rejection of any change of the
scope of her employment.
33. In the
Board’s view, the fact that Mrs Cheung did not reply to the letter dated 27
December is unsurprising. It is true that one paragraph (B) of the letter dated
27 December addressed the question of performance of duties but it did so only
in the most general fashion. It did no more than call Mrs Cheung’s attention to
her admitted contractual duty to manage the shop and perform any other duty
suitable to her post, and ask her to inform Mr Samba immediately should she
feel unable to carry out these duties or like to return to the post of sales
representative. No specific reference was made to jewellery deliveries and no
answers were attempted to any of the detailed contents of Mrs Cheung’s letter
dated 20 December, by which she had made very clear that she did not regard
such deliveries as within the scope of her contract and why she objected to
their being treated as such.
34. Nothing
can in these circumstances be inferred, by way of consent on her side to
undertake such deliveries, from the fact that Mrs Cheung did not reply,
repeating what she had already made clear on 20 December. If there is any
inference, it seems to be that Mr Samba could not on 27 December think of a
convincing response to her detailed objections, rather than vice versa. The
Supreme Court was therefore right to regard the issue as remaining open or
unresolved after December 2001.
35. The
other matter relied upon is the absence from Mrs Cheung’s industrial relations
complaint dated 20 February 2002 of any reference to any issue regarding
jewellery deliveries. But that
complaint came two and a half months after the last occasion when Mrs Cheung
had been asked to deliver jewellery, that itself only occurring during a period
of holiday leave of the employee who normally undertook deliveries; the
complaint was also two months after Mrs Cheung had made her position crystal
clear in her letter dated 20 December to which, as the Board has just noted,
there was no substantial or convincing response. There was no reason in these circumstances
for Mrs Cheung to raise the matter with the industrial relations authorities.
Nothing can in any event be inferred by way of consent from the fact that she
did not.
36. In
these circumstances, the Board is unable to see any basis on which it could
properly be concluded that Mrs Cheung agreed, either expressly or impliedly, to
vary the scope of her contract of employment to bring within her duties an
obligation to make jewellery deliveries from Belle Mare to Floreal when and if
requested. The request made of her on 25
May 2002 was thus one which she was entitled to refuse, as she did, and her
dismissal on account of such refusal was unjustified.
37. Accordingly,
this appeal must be dismissed. The
Board would like to record its thanks to solicitors and counsel for the
respondent who kindly agreed to act pro bono when it appeared that the
respondent would not otherwise be represented before the Board. The Board has benefitted greatly from the submissions
of counsel for both parties.
