UKPC 23
Privy Council Appeal No 0009 of 2011
Smegh (Ile Maurice) Ltée (Appellant) v Dharmendra Persad (Respondent)
From the Supreme Court of Mauritius
JUDGMENT DELIVERED BY
28 May 2012
Heard on 29 March 2012
Anil Gayan SC
Ms Jane Jouanis
(Instructed by M. Mardemootoo)
"Whilst being the Financial Controller at La Plantation Hotel, on about 25th September 2004, you took it upon yourself without the authority of the General Manage o[r] the Resident Manager to give instructions to Reservations Department not to present any bills to guests Barone Vincenzo upon departure as allegedly all the expenses for their stay in the hotel for period 25.09.04 to 07.10.04 would be settled by one Mr Vincente Panasiti from Switzerland.
On or about 09.10.04, you caused to be sent the invoices to Mr Vincente PANASITI in Switzerland and gave the assurance to management that payment would be effected at latest 31st October 2004, and that you would personally in case of default guarantee payment.
As at 06.12.04, no such payment has been effected and this is to the prejudice of La Plantation Hotel."
Mr and Mrs Barone were guests of the hotel. Mr Panasiti is Mrs Barone's father. The bill was eventually settled on 30 December 2004.
"Whilst being the Financial Controller at La Plantation Hotel, in breach of your duties, you failed to ensure that contracts were duly established for exhibitors at La Plantation Hotel for the period September to November 2004 with the result that monthly fees could not be recovered from some exhibitors to the prejudice of the hotel namely:-
|Exhibitors||Sept 04||Oct 04||Nov 04|
|B N Baichoo||Nil||Nil||Nil|
|Cie Historic Marine||Nil||Nil||Nil|
|Cie Paradise Art||Nil||Nil||Nil|
"Whilst being the Financial Controller at La Plantation Hotel, you failed to ensure that all creditors of the hotel were paid evenly with the result that some were regularly paid whilst others were not so paid and this to the detriment of the suppliers causing damage to the reputation of the hotel."
The first charge
"On the other hand, the Plaintiff maintained that he discussed with the General Manager and sought his green light before giving the instructions he gave, which version the Defendant failed to satisfactorily rebut. He also gave a cogent and plausible account of the circumstances in which the guests were introduced to him and he accepted to facilitate the special treatment they were given. He did not rest content with his sole word that everything was in order in as much as the guests were duly included in the debtors' list, there were plausible explanations as to the delay in the settlement of the bill and that the bill was duly paid subsequently. As a matter of fact, he called an appropriate witness in the person Mr Rajkumarsingh who confirmed all this. This witness impressed me as a witness of truth and his evidence stands both unshaken and unrebutted. Of note also, the Plaintiff readily accepted to sort out the matter and even offered to settle the debt personally. This is indeed a conduct that tends to show his good faith in the matter.
In the light of the observations set out above, I consider that it would be unreasonable to hold that there had been some sort of shortcoming on the part of the Plaintiff in relation to the problem subject matter of the first charge amounting to gross misconduct. In fact, I would even go to the extent of saying that this charge was not justifiable."
The second charge
The third charge
"The aim of a disciplinary committee, as we have said, is merely to afford the employee an opportunity to give his version of the facts before a decision relating to his future employment is reached by his employer. It is no substitute for a court of law, nor has it got its attributes. Furthermore, the employer is not bound by the recommendations of the disciplinary committee and is free to reach its own decision in relation to the future employment of his employee, subject to the sanction of the Industrial Court"
"The Magistrate in finding for the respondent accepted the version given in Court by the respondent which is contrary to the one he gave to his employer on the day of the occurrence and which led to his dismissal. In so doing the Magistrate made a wrong approach to the problem posed to him as the issue he has to decide was whether the appellant was justified, on the facts before him at the time, to dismiss the respondent. "