Pourshotramen Naidoo Rengassamy v La Laiterie de Curepipe Ltee

Transcription

1 Pourshotramen Naidoo Rengassamy v La Laiterie de Curepipe Ltee 2017 IND 1 Cause No: 256/2010 In the matter of : Judgment P.N. RANGASSAMY V LA LAITERIE DE CUREPIPE LTEE IN THE INDUSTRIAL COURT OF MAURITIUS Pourshotramen Naidoo Rangassamy V La Laiterie de Curepipe Ltee Plaintiff avers that he has been in continuous employment of the defendant as General Manager ( Production) since 1 October 2006 until the defendant summarily terminated his employment on 26 April He is claiming in all Rs representing 3 months salary in lieu of notice ( Rs ), severance allowance ( Rs Rs = Rs ), end of year bonus ( Rs ) and a medical scheme in the sum of Rs He is also claiming 12 % interest as from end of April 2010 until final payment, with costs. Soon after he retired from the civil service in September 2006, plaintiff joined the defendant company as General Manager ( Production ) in October At the request of the CEO of the defendant, in April 2007, the plaintiff also held the post of Production Manager over and above his duties of General Manager ( Production ), without any additional remuneration. With the consent of Management, Plaintiff went on vacation leave from 29 March to 23 April Plaintiff produced a draft contract of employment ( Doc E) which the defendant gave him and which mentions that the contract of employment was for five years and which also provides that either party may terminate the agreement by giving 3 months written notice to the other party. Although he was due to resume duty on Saturday 24 April which is a working day, Plaintiff deposed that he in fact never resumed duty as he was not given the opportunity to do so. His version is that on 22 April 2010, the CEO Mr Thanacoody requested him on the phone to come to work on Monday 26 April at 09 h 00. On 26 April, the CEO told him that due to economic constraints, the defendant had abolished his position and he had to vacate his post forthwith. He was shocked when Mr Thanacoody requested him to hand over to him the keys of the office on the same day. At the same time, Mr Thanacoody offered him a job as Consultant to be taken in June 2006 with a salary of Rs He felt humiliated and depressed and just went downstairs to his office and packed his belongings. He was already dismissed at 09h 30 on that

2 day. He went to the Labour Office to report the matter on 11 May He never applied for any additional leave but on 28 May 2006, he received a letter from the defendant ( Doc F) informing him that his request for his additional leave had been granted and hereby requesting him to resume duty on at 09h 00. On 31 May the defendant informed him that he had failed to comply with Doc F and he was directed to call at the office of the defendant on at 09 h 00 ( Doc G). As he considered that the defendant had already dismissed him on 26 April, he was reluctant to call at the office on , but he nevertheless went there and met Mr Sadien. On the same day, defendant put in writing ( Doc J) the offer made to him during that meeting that it was agreeable to pay gratuity on retirement and one month salary in lieu of notice to the plaintiff. But plaintiff is claiming that the termination of his employment is unjustified and the defendant terminated his employment on 26 April Under cross-examination, he denied that during the meeting of 26 April, he walked out of the office when he was told that his contract of employment is being terminated as per the agreement after being given 3 months notice. But he agreed that the defendant offered him to be a consultant to the company for the sum of Rs He did not accept that offer. He did not agree he was still in the employment of the defendant company until and also denied that he was the one who put an end to his contract of employment. He stated that he brought along his friend Mr Bansoodep to the meeting held on Mr G. Bansoodep deposed on behalf of the plaintiff. As plaintiff was not well, he agreed to accompany him for the meeting, but apart from stating that there was an offer of one month salary made to the plaintiff who refused it, he was very vague and did not shed light on the other issues which were discussed on that day. Mrs R. Seegoolam, Senior Labour Officer called by the plaintiff deposed that soon after plaintiff reported the matter to the Labour office on 11 May, he called Mr Thanacoody on the same day and the latter denied that he had dismissed him. On 25 May, Plaintiff did not attend a meeting with the defendant composed of Mr Sadien and the Human Resource officer, but plaintiff called on 31 May informing the Labour office that he received the letter dated 28 may from the defendant requesting him to resume duty on 31 May. Plaintiff wanted to negotiate with the defendant on his own and later when his negotiations failed, he informed the Labour Office that he did not wish the Labour Office to proceed with the case. The defendant called the Chief Executive Officer of the defendant company, Mr N. Thanacoody to depose. Whilst not disputing that the plaintiff joined the defendant company on a full time basis in October 2006, he also stated that prior to his retirement and still in the employment of the Ministry of Agriculture, plaintiff worked for the defendant company on a part time basis in 2004 and Plaintiff never signed the contract of employment with the defendant company. When he failed to resume work at the end of his vacation leave on , plaintiff was called at his office whereby the unsigned clause of the contract under paragraph 4 entitling either party to put an end to the contract by giving 3 months notice was applied. He informed plaintiff his contract will not be renewed on account of economic constraints but after he would have worked for three months. Under cross-examination, he agreed that he informed the plaintiff on 26 April 2010 that he was no longer going to employ him as Manager due to financial constraints, but he maintained that

3 he informed plaintiff he could stay in his job for three more months and at the same time offered him to join the company as Consultant with a salary of Rs He agreed that he gave a verbal notice to the plaintiff without complying with the terms of the contract requiring that a written notice be given by either party to terminate the contract of employment. Plaintiff s version is that some two years before the end of his contract of employment, the defendant summarily dismissed him without justification on 26 April 2010 due to financial constraints. The draft contract of employment was to expire after 5 years as from 2006 i.e it was to expire in 2011 but under clause 4 of the contract ( Doc E) provision was made that either party may terminate the agreement by giving 3 months written notice to the other part. In its written submissions, Counsel for the plaintiff referred to the cross-examination of Mr Thanacoody whereby he stated that a foreigner by the name of Mr Kodaikkal Vishwanath was recruited as Manager, Production and Quality Control in An application for work permit was issued by the Ministry of Labour ( Doc K7) as per the testimony of Ministry of Labour, Mrs Z. Dallah who was called by the plaintiff to produce the work permits ( Doc K to K11) which were issued by the Ministry upon application made by the defendant company to employ foreign nationals. Defendant for its part does not agree that it had terminated plaintiff s contract on 26 April as on two occasions, defendant wrote to him requesting him to resume duty with the defendant, which plaintiff failed to do. For the defendant, it was plaintiff who brought an end to his contract of employment. There are differing versions as to why plaintiff attended work on 26 April at the end of his overseas leave. Plaintiff s version was that he was asked not to resume duty because the defendant had the intention to sack him, which it did on 26 April. On the other hand, Mr Thanacoody explained that plaintiff invoked tiredness from his overseas leave to ask for an extension of his period of leave. This is why he called at the office on 26 April. Whilst in examination-in-chief, plaintiff stated that on 22 April he received a phone call from the CEO requesting him to come at the office on 26 April, under cross-examination he gave a different version when he was asked whether he resumed duty on 24 April. He answered that when he returned the car on 22 April that the defendant told him not to come on 24 April but to come on 26 April because there was changement de travail. It would seem that he went to his place on work on the expiry of his leave, but for doing something else other than working. Plaintiff denied that he had waited for the leave of 15 days he had requested on 26 April to come to an end on 11 May to attend the Labour Office. His explanation was that he was in shock, this is why he took some time to report the matter to the Labour office. Mrs Seegoolam stated that the first time plaintiff reported the matter to the Labour office was on The defendant having been made aware that he had reported the matter to the Labour office on 11 May, plaintiff s contention was that the defendant pretended he was on leave, this is why the defendant sent him the letter Doc F on 28 May informing him that it had approved the additional leave he had allegedly requested. When plaintiff was convened to meet management on , the minutes of the meeting which were recorded ( Doc H, H1 and H2) and kept by Mr Sadien who was not called to depose but they were produced by the plaintiff to show that he never requested for additional leave. However, plaintiff disagreed under cross-examination that his bad mental state was what prompted him to request for an extended leave, maintaining that he never applied for same.

4 Over and above his mental state, Plaintiff added that he had gone to Curepipe Labour office just after he was sacked, but from there he was referred to Rose Hill Labour office to report the company in his attempt to explain the delay in making the complaint against the defendant company several days after the meeting of 26 April. However, it is worthy to note that after reporting the matter to the Labour Office on 11 May, plaintiff failed to attend the meeting convened with the defendant on 25 May. Mrs R. Seegoolam, from the Ministry of Labour testified that plaintiff informed her that his employment was terminated on 6 April 2010, and not on 26 April as claimed by the plaintiff. There is substance in the defendant s case as put to the plaintiff under cross-examination that he waited for the period of extended leave to be over to call at the Labour office on It was put to plaintiff twice under cross-examination that he waited for the expiry of 15 days extended leave which he had requested on 26 April before going to the Labour office, but he evaded the question, at first stating that he had to put up a fight and later stating he was depressed. From 26 April to 11 May, there are 15 days in all, rendering plausible the version of the defendant company that it was at the request of the plaintiff that he was granted extended leave and that he waited until 11 May to report the matter to the Labour office. After seeking the help of the Labour office, plaintiff did not turn up at the meeting convened by the Labour officer Mrs Seegoolam to sort things out with the defendant. He called at the Labour office separately to inform her that he had received the letter dated 28 May 2010 from the defendant and that Mr Sadien made an offer to him on behalf of the defendant company. Subsequently on 31 May, he informed her that he was agreeable to the offer made and wanted to deal with the Director on his own. Plaintiff later informed the Labour office that he was not agreeable with the offer made to reinstate him in the company but he also did not want the Labour Office to intervene in the matter. During this lapse of time, the defendant gave him written notice on two occasions to resume duty. They tend to show that plaintiff wanted to have things done by the standard he had set himself. The frequent dealings he has had on his own with the defendant after the 26 April has cast a shadow on his version that the defendant had sacked him on that date. Defendant s representative was thoroughly cross-examined on the issue that he failed to abide by the contract of employment which provided for 3 months notice to terminate plaintiff s employment. It is worthwhile to note that the defendant agreed that the term of employment of the plaintiff was for five years and that there was a requirement of 3 months notice to be given by either party for the termination of the contract. However, I have read in Dalloz Actualite, 22 Mars 2012, Social, Contrat de Travail, the following: Alors qu aucun écrit n est nécessaire en matière de contrat de travail à durée indéterminée (CDI), la règle inverse prévaut en matière de contrat à durée déterminée (CDD. C. trav., art. L ). La Cour de cassation a déjà eu l occasion de préciser qu à défaut de signature, le CDD ne peut être considéré comme établi par écrit (Soc. 22 oct. 1996, n , RJS , n 1238 ; 26 oct. 1999, n , Bull. civ. V, n 399 ; D IR 265 ; Dr. soc , obs. Roy-Loustaunau; RJS , n 1444). Il pourra, par conséquent, être requalifié en contrat à durée indéterminée, uniquement à la demande du salarié (Soc. 16 juill. 1987, n , Bull. civ. V, n481 ; D Somm. 97, obs. Béraud ; GADT, 4e éd. 2008, n ; Dr. soc , note Poulain), sauf si celuici a refusé de mauvaise foi de signer le contrat (Soc. 18 avr. 2000, n , Dalloz jurisprudence ; solution identique dans le cas d un contrat de mission, l écrit étant également nécessaire dans ce cas, V. Soc. 15 nov. 2007, n , RJS 2/08 n 236). It follows that any shortcoming in procedure to make the contract legally binding converts a contrat à durée determinée into one of à durée indeterminée.

5 In the present case, Mr Thanacoody stated that although plaintiff was asked to sign the contract of employment, he did not return it to him. Plaintiff agreed he did not sign the contract of employment, a draft of which he filed in court. Mr Thanacoody s version was that he gave the plaintiff 3 months notice verbally, which is disputed by the plaintiff. During the meeting held by the Labour office on 25 May which the plaintiff did not attend, Mrs Seegoolam recorded in her notes the version of the employer that plaintiff s contract of employment came to an end in October 2009, but the defendant verbally agreed with the plaintiff to allow him to stay for a further period. This is an indication that the term of 5 years of plaintiff s employment had not been strictly adhered to, and this without any protest from the plaintiff. A degree of flexibility was given by the employer to the plaintiff in that he went to work at the expiry of his overseas leave one working day after the due date; that his leave could be extended by mere request, reflected in Doc F; that his contract of employment was brought to an end in October 2009 but subsequently renewed by his employer. Plaintiff is now relying on the unsigned, draft form of the contract in support of his case that the defendant should have given him three months written notice before terminating his contract of employment. It stands to reason that had he wanted to give effect to the will of the parties, plaintiff should have signed the contract of employment in the first place. Due to this omission, the period of 3 months notice cannot be said to be binding on the parties, and even less on the defendant company. Taking into account the failure of the plaintiff to sign the contract of employment, it entails that the terms of plaintiff s employment with the defendant which lasted for a little more than three years with a break in between was governed by the law applicable to all contracts of employment in Mauritius, the Employment Rights Act ( ERA). Hence, the defendant was required to give notice for a period of one month only as provided under s 37 (1) and (4) of the ERA and to which the defendant complied by making an offer to that effect as evidenced by Doc H2 put up by Mr Sadien on 3 June 2010, Doc J. Such an action was taken as a means of last resort after the defendant requested the plaintiff to resume duty on 31 May ( Doc F dated 28 may), then noted that he failed to comply with such request ( Doc G, dated 31 May) and requested him again to call at the office on 03 June. When this time plaintiff attended the meeting, the defendant took the trouble of putting in writing the discussion which was held, whereby the offer of one month salary in lieu of notice was made. Doc F and G are indicative of the fact that the defendant had not dismissed plaintiff on 26 April. The defendant invoked old age to justify why it wanted to bring an end to plaintiff s contract of employment after having given notice to him. This is in contradiction with the earlier version that it was due to financial constraints, plaintiff s employment was to be terminated. Such a contradiction does not automatically entail that there is unjustified termination of plaintiff s employment as the evidence on record has revealed that it was the acts and doings of the plaintiff which brought an end to his contract of employment with the defendant. I therefore hold that the defendant has proved that plaintiff s termination of employment was justified in the circumstances. The plaint is dismissed. With costs.

6 R. Seetohul-Toolsee 20 January 2017.