Hilary Term
[2015] UKPC 5
Privy Council
Appeal No 0086 of 2012
JUDGMENT
Seetohul
(Appellant)
v
Omni Projects Ltd
v
Omni Projects Ltd
(Respondent)
From the Supreme
Court of Mauritius
before
Lady Hale
Lord Wilson
Lord Hughes
JUDGMENT GIVEN
ON
3 February 2015
Heard on 15
January 2015
Appellant
Yashley Reesaul
(Instructed by Naresh Seetohul)
Respondent
The Respondent did not appear and was not represented
LORD HUGHES:
1. Dr Seetohul (the plaintiff) was employed as an Education
Officer by Omni Projects Ltd (the defendants). He brought a claim against the
defendants in the Industrial Court, alleging that he had been unlawfully
dismissed. He claimed three months’ remuneration (about 49000 rupees), coupled
with severance allowance at the punitive rate of six times the norm which is
prescribed in certain circumstances by statute (about 470,000 rupees). He
succeeded before the Industrial Court, but failed in the Supreme Court, which
allowed the defendants’ appeal and reversed the first instance decision. The
plaintiff appeals further to the Board.
2. The plaintiff wished to be absent from work for about a
fortnight in September 2003 (from about 15/16th to 25/26th) to attend an
international conference connected with a separate position which he held
independently of his employment. He needed the consent of the defendants, who
were entitled, as he accepted, either to agree or to refuse. The defendants
were unable to spare him, given the time of the academic year, the time he had
already had away from work, and the number of applications for leave which he
had made - one had been for the much longer period of 1 September to 27 October
2003. The Industrial Court found that the plaintiff knew full well as early as
July 2003 that his application for leave to attend the conference had been
refused, but that when the time came he left anyway. It also found that more or
less as he left on Friday 12 September, the plaintiff handed in to the
defendants a letter reiterating his request for leave, saying that he had had
no reply, and announcing that he would take silence for approval. On the
findings of the Industrial Court, that letter was written when he knew his
application had been refused.
3. On Tuesday 23 September the defendant employers wrote to the
plaintiff a letter which is at the centre of the helpful submissions made on
his behalf before the Board by Mr Reesaul. It said this:
“It is viewed with concern
that you have not been attending duty since Monday 15 September 2003 without
any valid reason whatsoever. You are therefore required to report to your work
forthwith, failing which your absence will be construed as an abandonment of
your post and the management reserves its right to take whatever action which
it may be advised against you.”
4. That letter would, it is agreed, have been delivered in the
ordinary course of post on Wednesday 24 September. The plaintiff was at that
stage out of the country. He returned on Thursday 25 September, apparently late
in the evening. The following day he did not report for work in the morning,
but he did go in to the College at about 2 pm, too late for any work that day.
He met the manager of the defendants, and handed him a letter in which he said
that he would be in for work on Monday (29 September). The manager told him
that the defendants would consider the position and that he should report on
Monday for a decision. When he did so on the Monday he was dismissed.
5. Employment law in Mauritius is based upon French law, but
with statutory modifications. At the time of these events, the statutory law
was contained in the Labour Act 1975, as amended. Two sections of that Act are
relevant. Section 30 deals with breach of an employment contract and is headed
“Termination of employment”. It provides by section 30(4):
“(4) An agreement shall be broken -
(a) by the
worker, where he is absent from work, exclusive of any day on which the
employer is not bound to provide work, without good and sufficient cause for
more than two consecutive working days;
(b) by the
employer, where he fails to pay the worker the remuneration due under the
agreement.”
Section 32 deals with
unjustified termination of employment. It provides, first, for the machinery
and procedure of dismissal for misconduct. Next, it provides by subsection (3)
for a worker who asserts that he has been unjustifiably dismissed to have a
right of complaint to the court. Then, by subsections (4) and (5), it provides
as follows:
“(4) Where a matter is referred to an officer or to
the Court under subsection (3), the employer may not set up as a defence that
the worker has abandoned his employment unless he proves that the worker has,
after having been given written notice -
(a) by post
with advice of delivery; or
(b) by
service at the residence of the worker,
requiring him to resume his employment, failed to do
so within a time specified in the notice which shall not be less than 24 hours
from the receipt of the notice.
(5) Subsection (4) shall not apply in relation to a
worker who has notified the termination of his employment in writing.”
6. The defendants had responded to the plaintiff’s court claim
by saying that the plaintiff had “abandoned his work and unilaterally put an
end to his employment before 29 September”. The Industrial Court treated that
as a plea that he had abandoned his job and treated the letter from the
defendants of 23 September, quoted at para 3 above, as a notice under section
32(4). It went on to hold that the plaintiff’s reporting to the College at 2 pm
on Friday 26 September was within 24 hours of his actual receipt of this
letter. On that basis, it allowed the plaintiff’s claim.
7. The Supreme Court allowed the defendants’ appeal
substantially on the basis of its earlier, and established, decision in
Mauritius Agricultural & Industrial Co Ltd v Permanent Secretary, Minister
of Labour & Social Security on behalf of
Auckloo [1974] MR 34
(“Auckloo”). That case had been decided on earlier statutory provisions but
there were material similarities with sections 30(4) and 32(4) of the Labour
Act 1975. The first provision considered, section 6(5) of the Employment and
Labour Ordinance, had provided that an employee who was absent through illness
but did not notify his employer of his illness within five days, was deemed to
have broken his contract. The second provision, section 7(3) of the Termination
of Contracts of Service Ordinance, was in terms similar to section 32(4) here
under consideration. The employee in Auckloo had been absent for fifteen days
before he gave notice of his illness to his employers, and they refused to
continue his employment. The Supreme Court held that the employers were not
relying on the worker’s abandonment, but rather on his having brought his
employment to an end by the kind of breach expressly dealt with by section 6(5)
- in other words a repudiatory breach. The court found that section 6(5) was a
statutory equivalent of French case-law on the subject of unexplained absence
amounting to a repudiatory breach. Having pointed out that the two different statutory
provisions needed to be reconciled, the court there said:
“In our view, a distinction must be drawn between
abandonment of work and absence from work. Absence is a mere fact independent
of any mental element. Abandonment, on the contrary, implies a specific intent
- viz the intent of the worker not to resume work and to treat the agreement as
dead. On such a view, there is no conflict between the two enactments. To plead
abandonment of work implies saying two things: first, the worker was absent from
work, and second, he intended not to resume work. The effect of section 7(3) is
that the employer will not be allowed to prove that specific intent unless he
has first taken steps to remove any possible controversy – viz by calling on
the worker to resume work. But section 7(3) in no way debars the employer from
proving the mere fact of absence from work: he may do so if, for instance, it
is relevant to a defence based on section 6(5). We hold that in this case the
defence was not abandonment of work, but absence from work coupled with a
failure to notify illness.”
8. For the plaintiff, Mr Reesaul’s contention is that this
drives a coach and four through the statutory requirements of section 32(4).
Says Mr Reesaul, abandonment consists of absence plus intention not to return
and this calls for the statutory safeguard under section 32(4) of an ultimatum.
It cannot be right, he submits, that mere absence, without the added ingredient
of intention not to return, should be immune from the same statutory safeguard.
9. In the Board’s view, however, the distinction made in
Auckloo is well founded in the statutory provisions, which must, as the Supreme
Court held, be reconciled one with the other. Section 30(4) is concerned with a
repudiatory breach, that is to say one which brings the contract to an end,
whether the employee wishes to do so or not. Conversely, section 32(4) is
concerned with an employee who deliberately abandons his job, subjectively
intending to do so. There may be an overlap in some cases between the two
situations, but they are not the same. An employee may well commit a
repudiatory breach by way of unauthorised absence for several days but
nevertheless hope that he will get away with it and remain in his employment -
indeed that seems to have been the situation of the present plaintiff. Nor is
it correct that abandonment is necessarily absence coupled with intention not
to return. That is only one form of abandonment, which could equally involve no
absence at all, for example where an employee denounces his job in the course
of a heated argument with his employer. That there should be a requirement for
a statutory safeguard of a written ultimatum to the employee in such a case
makes perfectly good sense, but it does not follow that the statute imposes
that requirement also in the case of an employee who commits a repudiatory
breach, and it does not.
10. Mr Reesaul sought to distinguish Auckloo on the basis that it
involved not only absence but a failure to give notice of illness. It is true
that the particular facts of that case involved a repudiatory breach by way of
failure to give notice of illness, but that is because those were the terms of
the breach provision there under consideration, section 6(5). But the principle
which underlies Auckloo applies equally to the slightly different breach
provision of section 30(4).
11. Since the time of this dispute, the statutory labour law has
been altered by Parliament. The Board was told that the rule in section 30(4)
treating more than two days’ unjustified absence as a repudiatory breach was
first modified to apply only to a second or later absence of this description,
and then removed altogether, so that it is not present in the current
Employment Rights Act 2008 as amended in 2013. That, however, only demonstrates
that the law prior to these adjustments, was as declared by the Supreme Court.
12. Next, Mr Reesaul submitted that the letter of 23 September
(para 3 above) amounted to an offer to re-engage the plaintiff, which he
accepted by presenting himself at work at 2 pm on Friday 26th. In consequence,
he submitted, any previous breach was spent. The Board does not agree that the
letter can bear this construction, especially given the final clause under
which the defendants reserved their right to deal with the plaintiff in any
manner advised; that warning is inconsistent with an offer to re-engage. In any
event, even if the letter could bear this construction, it would require
acceptance according to its terms, that is to say by the plaintiff presenting
himself forthwith for work. On any view he did not do so; rather, he waited
until late in the college day on Friday 26th to arrive and then did no more
than announce that he would come in on Monday. Even if, as Mr Reesaul
suggested, the letter could be read as requiring attendance as soon as
reasonably practicable, the plaintiff did not so attend; that he said that he
was tired after his flight did not make it impracticable to attend earlier.
13. For these reasons, the Board concludes that there is no error
in the conclusion of the Supreme Court. It might have added that even if the
letter of 23 September was to be regarded as an election to proceed under the
provisions of section 32(4), and as giving the plaintiff 24 hours to present
himself, starting with receipt in ordinary course of post, that period elapsed
well before 2 pm on Friday 26th.
14. The Board is most grateful to Mr Reesaul for undertaking this
case at short notice and for presenting every argument which could properly be
put on the plaintiff’s behalf. It follows, however, that despite his arguments,
this appeal must be dismissed.
