The Judicial Committee of the Privy Council Decisions

Jeetah v Ramkurrun (Mauritius) [2003] UKPC 43 (11 June 2003)

ADVANCE COPY

Privy Council Appeal No. 54 of 2001

Ramnath Jeetah Appellant

v.

Beejwantee Ramkurrun Respondent

FROM

THE SUPREME COURT OF MAURITIUS

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 11th June 2003

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Present at the hearing:-

Lord Hoffmann

Lord Hutton

Lord Hobhouse of Woodborough

Lord Walker of Gestingthorpe

The Rt. Hon. Justice Tipping

[Delivered by The Rt. Hon. Justice Tipping]

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1. At the heart of this appeal from the Supreme Court of Mauritius lie two related issues. The first is whether the respondent (Mrs Ramkurrun) was dismissed from her position as a teacher at the college of which the appellant (Mr Jeetah) was the manager. The second is whether, if she was, her dismissal was unjustified. Following what she claimed to have been an unjustified dismissal Mrs Ramkurrun brought proceedings in the Industrial Court of Mauritius for an indemnity in lieu of notice and severance allowance at what is known as the punitive rate, which amounts to six times the normal rate. The learned magistrate (Mrs R Gulbul) found that Mrs Ramkurrun had been summarily dismissed without justification. It was a constructive dismissal which arose in circumstances to be described a little later. As the dismissal was without justification Mrs Ramkurrun was entitled to severance allowance at the punitive rate and judgment was given in her favour by the Industrial Court in these terms.
2. Mr Jeetah appealed to the Supreme Court (Pillay CJ and Judge Lam Shang Leen) which upheld the Industrial Court's conclusion that there had been a summary dismissal. Although not expressing itself in terms of lack of justification the Supreme Court also effectively held that Mrs Ramkurrun's dismissal was unjustified. Mr Jeetah's appeal was therefore dismissed.
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 Mrs Ramkurrun resigned. He also contends additionally or alternatively that the case was not one in which severance allowance at the punitive rate was appropriate. Their Lordships will refer to the submissions made for the appellant by Mr Ollivry QC after setting out the circumstances of the case in sufficient detail to put the issues in context. Mrs Ramkurrun was not represented on the hearing of the appeal before their Lordships' Board and had lodged no written case.
4. Mrs Ramkurrun had been in the continuous employment of the college as a Grade B teacher from 18th March 1984 up to the events in question. On 18th September 1996 she wrote to Mr Jeetah advising him she wished to join Cosmopolitan College "at the beginning of 1997". She requested Mr Jeetah to forward to her by 27th September a testimonial of (1) her character (2) her length of service and (3) a transfer certificate.
5. On 21st September she wrote to Mr Jeetah again:

"Dear Sir,

I have already given you written statutory notice that I intend to join the Cosmopolitan College, Plaine des Papayes, as a grade B teacher with effect from the beginning of January 1997. I have already applied for a transfer certificate and my previous letter of September 18, 1996 should be construed as written notice in accordance with law following my application for a transfer so as to safeguard my length of service.

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 Cosmopolitan College, with my existing length of service and acquired rights preserved with my new employer.

I expect a written answer from you as to whether you are prepared to issue the transfer certificate.

Yours faithfully,"

To this letter she received a peremptory reply signed by Mr Jeetah which simply said "Dear Madam, The question of transfer certificate does not arise. Yours faithfully". On 5th October 1996 Mrs Ramkurrun confirmed in writing that she was intending to join Cosmopolitan College "as from 7th January 1997".

6. At the end of the school term in October Mrs Ramkurrun was not given a circular which requested teachers to call at the school on 15th and 22nd November. The learned magistrate found that she did call for work at the school on 15th November and signed her attendance. But she was informed that Mr Jeetah had indicated that she no longer worked at the school. The Rector confirmed that Mr Jeetah had given instructions to this effect. Mrs Ramkurrun reported to the school again on 22nd November and asked Mr Jeetah for the attendance register. He told her that she should not sign it as she no longer worked at his college. He then asked her to leave the school premises. In the meantime on 8th November Mr Jeetah had, without advising Mrs Ramkurrun, written a letter to the Private Secondary Schools Authority, which was responsible for paying the salaries of teachers like Mrs Ramkurrun, requesting that the Authority withhold Mrs Ramkurrun's salary for the months of November and December 1996.
7. The learned magistrate specifically rejected evidence called by Mr Jeetah suggesting that Mrs Ramkurrun had orally resigned on the last school day (either 30th or 31st October). The magistrate described this suggested resignation as "dubious indeed".
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 Cosmopolitan College. He was unwilling to cooperate and help her with this move and refused to give her a transfer certificate; without even stating the reasons for such a refusal. He however made it clear to her that if she were to resign from his employment, there would be no problem in her obtaining the transfer certificate.

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 15.11.96, they told her that there was no work to be done by her at the college and on 22.11.96 defendant personally told her that she should not sign the register as she no longer worked at the college, and furthermore asked her to leave the school premises. In addition, the defendant wrote to the PSSA behind plaintiff's back, asking the latter to withhold her salary for the months of November and December 96."

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 Mrs Ramkurrun did not propose to resign the learned magistrate meant that Mrs Ramkurrun did not propose to resign with immediate effect. She did of course propose to resign following the expiry of the period of notice which she gave, but was careful not to be seen to be resigning without giving such notice.
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). Mr Jeetah therefore appeals to their Lordships' Board in circumstances where there have been concurrent findings below, first that Mrs Ramkurrun was dismissed and second that such dismissal was unjustified.
11. The relationship of the parties was governed by the Labour Act 1975 (the Act). Mrs Ramkurrun was a worker within the meaning of section 2. Section 30 governs Termination of Agreements, ie contracts of employment between employee and employer. Section 30(3) provides that where a worker is ill-treated by his employer, he may claim that the agreement had been terminated by the employer. This circumstance raises a case of constructive dismissal as that term was used by the courts below. Indeed the Supreme Court observed that the present case was on all fours with Compagnie Mauricienne de Textile Ltée v K Jhankar (1999) SCJ 225. In that case the worker had given notice of resignation as from a future date. He was in the meantime treated in such a way as to amount to constructive, if not actual dismissal. The Supreme Court described him as having been ill-treated. Their Lordships understand that to have been a reference to section 30(3).
12. Pursuant to section 31 of the Act, Mrs Ramkurrun, having been employed for not less than three years, was obliged to give her employer at least three months' notice of termination. This she did. Section 32 governs cases of unjustified termination of employment contracts but is clearly not intended to be exhaustive as to the circumstances in which a dismissal will be unjustified. Indeed subsections (4) and (5) in their context imply that dismissal can occur despite the fact that the worker has already given written notice of the termination of his employment. Both for this reason and because the employment relationship does not come to an end until the expiry of the notice period, their Lordships cannot accept Mr Ollivry's submission that Mrs Ramkurrun could not in law be dismissed after she had given the requisite three months' notice of termination.
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 Mr Jeetah's appeal from the Industrial Court the Supreme Court expressed itself in the following way:

"However, it [the Industrial Court] was right, in our opinion, to come to the conclusion that the respondent had been summarily dismissed by the appellant in the circumstances since the latter had committed a 'faute lourde' [serious misconduct], given that –

(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.

15. Mr Ollivry submitted as regards the Supreme Court's point (a) that Mr Jeetah did not have to accept Mrs Ramkurrun's resignation and that the Supreme Court therefore erred in law in this respect. Counsel referred to the judgment of Diplock J in Riordan v The War Office [1959] 3 All ER 552. Their Lordships consider that the Supreme Court was addressing the question of acceptance not as a matter of legal necessity but rather to make the point that Mr Jeetah was unwilling to allow the three months' notice which Mrs Ramkurrun had given to run its course in the ordinary way.
16. As the Supreme Court said, Mr Jeetah tried to force Mrs Ramkurrun to resign immediately, which she was not willing to do. He had no basis for taking that stance. Nor as the Supreme Court said did Mr Jeetah indicate that Mrs Ramkurrun would be paid for the period of notice but would not be obliged to work during that period. The circumstances of the present case are such that Riordan's case gives the appellant no assistance.
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 Mr Jeetah's instructions to the PSSA were in clear breach of his contractual obligations. He thereby procured a failure to pay Mrs Ramkurrun the remuneration due to her.
18. Their Lordships cannot accept Mr Ollivry's submission that, if anything, the case justified an award of damages rather than severance allowance. Once it had been held on the facts that Mrs Ramkurrun had been unjustifiably dismissed she had a statutory right to be awarded severance allowance at the punitive rate. Their Lordships have carefully considered all the other points urged upon them by Mr Ollivry but are of the view that the conclusion, essentially of fact, reached by both courts below that Mrs Ramkurrun was unjustifiably dismissed was fully open on the evidence. Indeed their Lordships consider it to have been correct. The further conclusion that Mrs Ramkurrun was entitled in these circumstances to severance allowance at the punitive rate was correct in law. The appeal is therefore dismissed.