Michel Lafresière (ML) was employed as Maintenance Manager with the New Mauritius Hotels Ltd (NMH). ML claimed Rs 6,001,899.66 before the Industrial Court, for unjustified termination of his employment. His claim was set aside and he appealed to the Supreme Court. The Supreme Court allowed the appeal on two principal grounds and awarded him severance allowance in the amount of Rs 6,001,899.66. NHM appealed to the Judicial Committee of the Privy Council (JCPC).

The JCPC addressed the two issues raised by NMH which can be summarised as follows:

(i) whether the Supreme Court was wrong to decide that the pleaded defence did not incorporate the allegations in the Dismissal Letter and

(ii) whether the Court was wrong to conclude that there had been confusion before the Magistrate as to the reasons for ML’s dismissal.

The JCPC held:

  • Nowhere in the defence did NMH actually set out the allegations of misconduct on which it relied to justify ML’s dismissal and nowhere did it unequivocally or clearly refer to the Charges Letter or to the Dismissal Letter in a way which incorporated those documents as its reasons for dismissing ML;
  • NMH had not discharged the burden of proving that it had no option in good faith but to dismiss ML;
  • It was not clear whether the Learned Magistrate concluded that NMH had no option in good faith but to dismiss ML because of ML’s non-attendance at the disciplinary hearing or because the charges against him were proved to the Magistrate’s satisfaction; and
  • The no option test is not unique to the misconduct justification for dismissal. Section 38(3) provides that no employer shall terminate a worker’s agreement for reasons related to the worker’s poor performance unless he cannot in good faith take any other course of action.

This decision of the JCPC reaffirms the importance of the protection conferred on employees and emphasises the importance of pleadings in such type of cases:

  • when a worker brings a claim for severance pay before the Industrial Court, that Court is required and entitled to investigate afresh the truth behind the allegations on which the employer relies to justify the dismissal of the employee;
  • in such claims (wrongful dismissal), the Court places particular emphasis on the pleadings;
  • employers must properly plead the reasons for the dismissal and that those reasons must be the same as the reasons given at the time of the dismissal; and
  • the Industrial Court must focus their fact-finding exercise on those reasons.
Key Contacts

Yahia Nazroo

Partner: Mauritius

T +230 203 4313
E Email Yahia

Dylan Mannikum

Associate: Mauritius

T +230 403 4371
E Email Dylan

Twitter LinkedIn Email Save as PDF
More News