Mauvilac Industries Ltd v. Ragoobeer (Mauritius )  UKPC 43 (25 June 2007)
Privy Council Appeal No 33 of 2006
Mauvilac Industries Ltd Appellant
Mohit Ragoobeer Respondent
THE COURT OF APPEAL OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 25th June 2007
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Present at the hearing:-
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
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[Delivered by Lord Rodger of Earlsferry]
"(1) An employer may not set up as a good and sufficient casue for the summary dismissal of a worker -
(c) the filing in good faith of a complaint or the participation in a proceedings against an employer involving alleged violation of laws or regulations...."
(2) An employer may not dismiss a worker for alleged misconduct except in a case where he cannot in good faith be expected to take any other course and unless such dismissal is effected within seven days after the employer becomes aware of such misconduct."
"(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 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.
(b) The worker may, for the purposes of paragraph (a), have the assistance of a representative of his trade union, if any, of an officer or of his legal representative.
(3) (a) Subject to paragraph (c), a worker whose employment has been unjustifiably terminated may refer the matter to an officer and shall be allowed the assistance of a representative of his trade union, if any.
(b) Where a reference under paragraph (a) does not result in the matter being satisfactorily settled, the worker may lodge a complaint with the Court and shall be allowed the assistance of a representative of his trade union, if any.
(c) No worker shall, under paragraph (a), refer a matter to an officer unless he does so within 7 days after he has been notified of his dismissal."
"The following, inter alia, should not constitute valid reasons for termination of employment:
(c) the filing in good faith of a complaint or the participation in a proceeding against an employer involving alleged violation of laws or regulations...."
Paragraph 4 is to this effect:
"A worker who feels that his employment has been unjustifiably terminated should be entitled, unless the matter has been satisfactorily determined through such procedures within the undertaking, establishment or service, as may exist or be established consistent with this Recommendation, to appeal, within a reasonable time, against that termination with the assistance, where the worker so requests, of a person representing him to a body established under a collective agreement or to a neutral body such as a court, an arbitrator, an arbitration committee or a similar body."
Finally, paragraph 11 provides inter alia:
"(1) In case of dismissal for serious misconduct, a period of notice or compensation in lieu thereof need not be required, and the severance allowance or other types of separation benefits paid for by the employer, where applicable, may be withheld.
(2) Dismissal for serious misconduct should take place only in cases where the employer cannot in good faith be expected to take any other course.
(3) An employer should be deemed to have waived his right to dismiss for serious misconduct if such action has not been taken within a reasonable time after he has become aware of the serious misconduct.
(4) A worker should be deemed to have waived his right to appeal against dismissal for serious misconduct if he has not appealed within a reasonable time after he has been notified of the dismissal.
(5) Before a decision to dismiss a worker for serious misconduct becomes finally effective, the worker should be given an opportunity to state his case promptly, with the assistance where appropriate of a person representing him."
The resemblances between the legislation in 1963 and 1975 and the ILO Recommendation show beyond any doubt that the legislation was framed with paras 3, 4 and 11 of the Recommendation in mind. This was expressly recognised by the Supreme Court in Savanne Bus Service Co Ltd v Peerbaccus 1969 MR 139.
Date of Effective Dismissal
"Both from the point of view of the worker and that of the employer, it is in their best interests that the contractual bond be severed within a definite period of time when the continued employment of the worker becomes impossible through his proven misconduct."
In subsection (3)(c) the legislation imposes a corresponding obligation on employees to act quickly: an employee cannot challenge his dismissal as being unjustified by referring it to an officer under subsection (3)(a), unless he does do so within 7 days of being notified of his dismissal. The courts must respect the policy which lies behind the time-limits that the legislature has imposed.
Simple or six-fold severance allowance?
"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)."
Mauvilac contends that, since Mr Ragoobeer had in fact acted improperly, it was entitled to terminate his contract of employment on giving him the appropriate notice and paying him simply the appropriate severance allowance.
"The Magistrate of the Industrial Court shall be empowered, if he finds that the termination of employment was unjustified, to order that the worker concerned, unless reinstated, where appropriate with payment of unpaid wages, should be paid six times the amount of severance allowance calculated in accordance with the provisions of section 11 of this Ordinance."
Although the amendment introduced the six-fold penalty, the provision simply conferred a power on the magistrate to make such an order. Section 7 was further modified by section 4(a) of The Termination of Contracts of Service (Amendment) Act 1971. Section 7(5) now provided:
"The Magistrate of the Industrial Court shall, if he finds that the termination of the employment was unjustified, order that the worker shall be paid a sum equal to six times the amount of severance allowance calculated in accordance with the provisions of section 11."
In effect, this provision was the forerunner of section 36(7) of the 1975 Act.
"If, on the other hand, the conduct of the employee is not such as would amount to the misconduct contemplated by the said section 6 and 9, but such nevertheless as would justify the employer in not continuing to employ him, then the latter is entitled to put an end to the worker's employment, but he must pay him any severance allowance due in accordance with section 9 and 11 of the Ordinance and, possibly also, give him the required notice.
This being the effect of subsection (3) of section 7 of the Ordinance, the jurisdiction of the magistrate under subsection (4) of that section to mulct an employer in six times the severance allowance is limited to those cases where the employer has no valid reason at all to discontinue employing a worker. It will, therefore, be the magistrate's duty in any case of termination of employment referred to him in which the employer pleads as in the present case to enquire whether there was any reason for such termination and, if there was, whether it justified the summary dismissal of the worker or simply the discontinuance of his employment with payment of severance allowance."
"the jurisdiction of the magistrate under section 7(4) to mulct an employer in six times severance allowance is limited to those cases where the employer has no valid reason at all to discontinue employing a worker and, in any case of termination of employment referred to him in which the employer pleads, as the appellant, the magistrate's duty is to enquire whether there was any reason for such termination, and, if there was, whether it justified the summary dismissal of the worker or simply the discontinuance of his employment with payment of severance allowance. In this case the magistrate has found, quite rightly in our view, that there was a valid reason for the termination of the respondent's employment and that the appellant would have been entitled to dismiss the respondent summarily, but for his failure to comply with the conditions of section 6(2) of the Ordinance. On such failure the appellant should merely be deemed to have waived his right to dismiss the respondent summarily and, consequently, that kind of termination was not justified. On the other hand, since there was a valid reason for the termination of the respondent's employment, such termination with payment of any severance allowance due was justified and the magistrate was wrong to award to the respondent six times the allowance."
"If an employer does not dismiss a worker within the mandatory statutory limit of seven days, he is deemed to have waived his right to dismiss the worker for serious misconduct and not to pay severance allowance (section 35(1) of the Act) so that any subsequent dismissal becomes unjustified and attracts severance allowance at the punitive rate, irrespective of whether he has or not a valid reason to discontinue with the employment of the worker, with or without payment of severance allowance at the normal rate – vide section 36(7) of the Act."