Easter Term
[2019] UKPC 17
Privy Council Appeal
No 0022 of 2016
JUDGMENT
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Gunesh
(Appellant) v The National Transport Corporation and another
(Respondents) (Mauritius)
From the Supreme Court of Mauritius
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before
Lord Kerr
Lady Arden
Lord Kitchin
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JUDGMENT GIVEN ON
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13 May 2019
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Heard on 27 February 2019
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Appellant
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Respondent
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Edward Risso-Gill
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Gilbert Ithier SC
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Simon Livingstone
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(Instructed by Janes
Solicitors)
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(Instructed by Seebaluck
Chambers)
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LADY ARDEN:
Matters for determination on this appeal
1.
Mr Rama Gunesh brings this appeal, with leave of the Supreme Court
(Court of Civil Appeal) of Mauritius (hereafter the Court of Civil Appeal),
against the dismissal of his claim against the respondent (“NTC”) for damages
for wrongful termination of his long-standing employment as head of stores.
This followed a hearing by a disciplinary committee (“the committee”). The
Supreme Court (Caunhye J) dismissed his claim and the Court of Civil Appeal
(Chief Justice Matadeen and Devat J) dismissed his appeal. Mr Gunesh challenges
the trial judge’s findings of fact and additionally contends that the trial
judge imposed on him the employer’s burden of proving that his dismissal was
justified. He also contends that the judge was wrong not to admit in evidence
transcripts of the evidence given to the committee. The Board has considered
the evidence de bene esse. Even with the benefit of this additional
evidence and argument, however, the Board considers that the appeal must be
dismissed.
Background facts
2.
NTC ran a fleet of Nissan SP 215 buses for public transport from several
depots, including one at Souillac. Mr Gunesh’s duties included management of
the stores of NTC and ensuring the maintenance of proper internal control with
regard to stock. He also had to liaise with the mechanical engineers and
establish procurement programmes in line with NTC’s policies and stock
management principles. There were four charges against him. The most serious
charge related to his authorisation of a purchase of nine main shafts for the buses
in February 2004, and this appeal relates to that charge.
3.
The charge against Mr Gunesh was that he had not been entitled to follow
NTC’s Immediate Quotation procedure (“IQ procedure”) when making a purchase of nine
main shafts at a price of Rs 45,000 per unit which was over 100% more (Rs
19,500 per unit) than NTC had previously approved for this item. Mr Gunesh
contended that the head of engineering, Mr Rajcoomar, had authorised him to
make this purchase but NTC (among other matters) denied this. Indeed Mr
Rajcoomar, who did not give evidence to the committee due to absence abroad,
did not know that Mr Gunesh had used the IQ procedure to order nine main shafts
in February 2004. On this matter, the judge rejected Mr Gunesh’s case on the
facts and concluded that:
“It is abundantly plain therefore
that the evidence overwhelmingly established the charges of gross misconduct in
respect of the plaintiff which would justify the termination of his employment
by Defendant No 1. Furthermore, as has been amply established by the testimony
of witnesses Mallam Hassam and Modee, the disciplinary committee was at the
material time of the disciplinary hearing in presence [possession] of all the
material facts and circumstances concerning the acts and doings of the plaintiff
in order to find the charge of gross misconduct proved against the plaintiff.”
4.
Mr Gunesh’s case was that the relevant purchase by the IQ procedure was
properly authorised. Mr Rajcoomar, head of the engineering department, had
orally told him to procure these main shafts because a number of buses
operating from the Souillac depot had noisy gearboxes which might shortly
require replacement. Mr Gunesh made a note of this conversation on a document
known at trial as Document P. He had no written instruction from Mr Rajcoomar.
Mr Gunesh went ahead and initiated the system for acquiring goods urgently.
This involved internal approval but Mr Gunesh did not disclose to the relevant
authority that an order (“the Cassamally live tender”) had already been placed
with another supplier, Cassamally, which had failed to deliver in accordance
with the agreed timetable. He did not know about the Cassamally live tender
when he got internal approval but he was aware that had happened before he
placed the order. NTC contended that he should have disclosed the Cassamally
live tender to the committee which gave internal approval.
5.
In fact, NTC suffered no financial loss through Mr Gunesh’s actions
because Mr Gunesh arranged for the nine main shafts, which the judge held NTC
found to be unsuitable, to be returned to the suppliers and for their cost to
be debited to the suppliers’ accounts with NTC.
6.
Mr Gunesh has filed several grounds of appeal. He no longer relies on
any violation of his constitutional rights. The Board has grouped his remaining
grounds into three grounds, as counsel did in argument.
Mr Gunesh’s first ground: was there a reversal of the
burden of proof?
7.
Mr Edward Risso-Gill, appearing with Mr Simon Livingstone, for Mr Gunesh
submits that, once Mr Gunesh had shown that he had been dismissed summarily,
the onus shifted to the employer to show that summary termination was
justified. He cites Pamplemousses/Rivière du Rempart District Council v
Hurbungs 2010 SCJ 382, and article 1315 of the Civil Code, as authority for the proposition
that the employer must show that any summary dismissal was justified. Article
1315 of the Civil Code was not cited below, but, as it is a point of law and
there was no objection to its introduction, the Board allows it to be raised.
8.
Mr Risso-Gill further submits that the judge had treated NTC’s burden as
limited to raising a prima facie case of justification. The Court of Civil
Appeal had upheld the judge’s decision, holding that NTC’s onus was an
evidential one, by which, on his submission, they meant simply the burden of
raising the issue.
9.
Mr Gilbert Ithier SC, for NTC, submits that under Mauritian law, once
the employee establishes a breach of contract, the evidential burden switches
to the employer and the employer has to prove the charges against the employee.
In this case they were proved. It was then for the judge, on the whole of the
evidence, to decide whether the employee had satisfied the legal burden of
proof. The evidential burden had shifted in the course of trial. Mr Ithier
submits that the judge was clearly aware of this when he held that the evidence
“overwhelmingly established” the charges of gross misconduct against Mr Gunesh.
This was in line with Phipson on Evidence, 19th ed (2018), para 6-06,
which states that:
“So far as the persuasive burden
is concerned, the burden of proof lies upon the party who substantially asserts
the affirmative of the issue. … This rule is adopted principally because it is
just that he who invokes the aid of the law should be the first to prove his
case; and partly because, in the nature of things, a negative is more difficult
to establish than an affirmative. The burden of proof is fixed at the beginning
of the trial by the state of the pleadings, and it is settled as a question of law,
remaining unchanged throughout the trial exactly where the pleadings place it,
and never shifting.” (footnotes omitted)
10.
The Board agrees with Mr Ithier and with the Court of Civil Appeal. The
judge’s conclusion (set out at para 3 above) constitutes his reasoning on what
might be called the ultimate issue in this case. In this case, the ultimate
issue was whether Mr Gunesh’s dismissal was wrongful. Likewise the extract from
Phipson is also dealing with the ultimate issue. When the Court of
Appeal referred to the evidential burden on the employer, they were using that
term as referring to the burden which the law places on the defendant to prove
a particular fact in the case (justification), on the footing that, as Phipson
indicates, as a matter of law there is only one issue to be proved. The
burden of proving that issue is the legal burden of proof and the burden of
proving any other matter is termed evidential. It is inaccurate to speak of a
burden of proof as “shifting”. There are two possible burdens - one on the
employer to prove particular facts said to establish justification; the other
on the employee to discharge the ultimate burden. These arise according to the
cases which the respective parties make. They are separate burdens arising in
different contexts. It is not a case of a single burden moving from one party
to the other. Where, as here, the employer raises a particular defence, it must
adduce evidence in support of that defence; hence the use of the term, “evidential
burden”. This is the burden which the lower courts recognised fell on NTC in
this case. The Board sees no basis for concluding that the Court of Civil
Appeal or the judge merely imposed on NTC the burden of raising the issue of
justification.
Mr Gunesh’s second ground: was the judge wrong to refuse
to admit in evidence transcripts of the disciplinary hearing and Document H?
11.
Mr Risso-Gill argues that the trial judge should have admitted in
evidence the transcripts of the hearing before the committee, and that they
would have shown that Mr Rajcoomar had given evidence which supported Mr
Gunesh’s case that Mr Rajcoomar had authorised him to make a speedy purchase of
main shafts. Under the Northern Transport principle (after Northern
Transport Co Ltd v Radhakissoon [1975] MR 228; 1975 SCJ 223), an employer
cannot in seeking to justify a summary termination of a person’s employment
contract, rely on grounds that were not relied on at the disciplinary hearing.
In this case, there had been an impermissible change of case. If the judge had
had the transcripts of the evidence given to the committee, he would have seen
that Mr Gunesh had been consistent in his evidence throughout and if he had
done that, his assessment of Mr Gunesh’s evidence overall might have been
different.
12.
Mr Ithier agrees that under Mauritian law the trial judge had to decide
not whether NTC’s decision to dismiss the employee fell within the range of
reasonable responses that a reasonable employer in those circumstances and in that
business might have adopted (compare Iceland Frozen Foods Ltd v Jones [1983] ICR 17), but whether NTC were in fact justified in dismissing him. The
transcripts of the committee hearing were only admissible in evidence if the
employer had changed his case from that relied on before the committee. The
judge asked whether counsel could point to any such inconsistency in NTC’s
case, but counsel did not take up that opportunity.
13.
The Board agrees with Mr Ithier. The judge made it clear at the trial
that in his judgment there was no change of case, and Mr Gunesh’s counsel did
not gainsay the judge at trial on this point. Moreover, in the Board’s judgment,
no difference of case is perceptible. While NTC called two new witnesses at
trial, on proper analysis this step did not alter the nature of its case. The
first new witness (Mr Mallam Hassam) gave evidence on a different point. Mr
Bhageerutty, deputy head of stores and the second new witness, confirmed the
evidence of Mr Modee, NTC’s internal auditor. Like Mr Modee, he said that the
IQ procedure was only used for buses which had broken down, and that the
authorisation of a purchase was not in the discretion of Mr Gunesh.
14.
The judge was therefore correct not to admit transcripts in evidence. Mr
Risso-Gill also seeks to add to the record available to the Board Document H, a
small bundle of documents which includes Document P. The trial judge had these
documents, and so there is no reason why they should not be used on this
appeal.
Mr Gunesh’s third ground: did the trial judge make
perverse findings of fact?
15.
As Mr Risso-Gill accepted, it is well established that there must in
general be a “violation of some principle of law or procedure [such that] if
that proposition be corrected the finding cannot stand.” (Devi v Roy
[1946] AC 508, proposition 4). In the Board’s judgment, contrary to the
submission of Mr Risso-Gill, this proposition must apply to an assessment of
primary facts and the drawing of inferences, such as findings as to whether a
person had authority or was wrongly dismissed.
16.
Mr Gunesh accepted that he only had authority to deploy the IQ procedure
if the head of engineering approved its use. His case was that that approval
was given by Mr Rajcoomar and that it could be given even if the relevant bus
was not off the road for repair, ie was not non-operational, in anticipation of
the disruption that its becoming non-operational would cause.
17.
On this part of Mr Gunesh’s case, Mr Risso-Gill principally submits that
Mr Rajcoomar had agreed in his evidence before the committee that he had in
fact authorised Mr Gunesh to make an immediate purchase of main shafts. Mr
Risso-Gill submits that NTC had no answer to Mr Rajcoomar’s evidence on this
point and that it was in effect perverse for the judge to hold that there was
no authority. He further submits that, in considering the judge’s findings, the
Board should take account of the 18-month delay in the delivery of the judge’s
judgment.
18.
The Board notes, however, when Mr Rajcoomar gave authority for another
urgent purchase on 6 January 2004, he wrote on the list of required spares
(which the judge called Document P) “S/Supt [Stores Superintendant] for needful”
and initialled it. That list did not include any main shafts. Mr Gunesh relied
on a further list of required spares, including two main shafts, on the reverse
of the list initialled by Mr Rajcoomar. This list was endorsed with notes by
himself including a note: “To ensure the availability of all the important
items,” after stating that eight buses at the Souillac depot had noisy gear
boxes. Mr Rajcoomar had not initialled this list. He did not dispute that he
had told Mr Gunesh to take action with regard to the noisy gear boxes in
question to avoid buses having to be taken off the road, but he did not know
that Mr Gunesh had subsequently used the IQ procedure.
19.
Moreover, NTC’s bin records showed that main shafts were “slow-moving”
items, ie that the engineering department used them only once in the preceding
two years. One was needed in June 2004, but the engineering department used one
it already had in stock.
20.
In addition, Mr Gunesh criticises as unfounded the judge’s finding that
Mr Gunesh, contrary to his own evidence, knew about the Cassamally live tender
when internal approval was obtained. Yet Mr Gunesh in any event accepted that
someone had informed him of it before he placed the order. He sought to explain
his failure to take any step to have the internal approval confirmed by saying
that Mr Ramjatton, a member of the two-person internal committee, already knew
about the Cassamally live tender. That is an explanation which the committee
and the judge might understandably have regarded as unsatisfactory.
21.
In those circumstances, in the opinion of the Board, Mr Gunesh’s
principal challenge to the judge’s findings of fact does not meet the test for
challenging concurrent factual findings on an appeal to it. The Board does not
consider that the delay in delivering judgment is relevant in this case and in
any event, the point was not taken in the Court of Civil Appeal so that the
Board does not have their views on this point.
22.
Mr Risso-Gill relies on other matters in his skeleton argument. But
given that his principal point fails the Board does not consider that those
points, either singly or cumulatively can meet the stringent conditions for a
successful appeal to the Board where the local courts have made concurrent
findings of fact.
23.
In the circumstances the Board dismisses the appeal and refuses
permission for the additional evidence to be adduced.
