Mooken v Top Notch Ltd (labour office case)

Transcription

1 Mooken v Top Notch Ltd (labour office case) Though the Court concluded that the disciplinary committee rightly found the worker guilty of gross misconduct, it however found that the latter was not afforded a fair hearing. The director of the company acted as judge and party by sitting as a member of the disciplinary committee though the worker was accused of using filthy words against him IND 29 Cause No:488/2011 In the matter of : Judgment Rajendra Mooken v Top Notch Ltd R. MOOKEN V TOP NOTCH LTD IN THE INDUSTRIAL COURT OF MAURITIUS RAJENDRA MOOKEN V TOP NOTCH LTD The plaintiff claims that he was in the continuous employment of the defendant as storekeeper for 43 months from to when his employment was terminated without notice and without justification. He also avers that the director of the company was a member of the disciplinary committee hearing charges that he had uttered offensive words and threatened to physically assault the director and as such he was not given a fair hearing. He is claiming the total sum of Rs representing 22 days wages in lieu of notice and severance allowance for 43 months of continuous employment with 12 % interest on the severance allowance payable from the date of termination of employment to the date of payment. The defendant has pleaded that the labour inspector representing the plaintiff during the proceedings of the disciplinary committee did not object to the presence of the director as a member of the committee and denies that the plaintiff has not been afforded a fair hearing. The defendant has pleaded that the dismissal was fair and just in the circumstances. Following an incident which occurred on , by way of letter dated ( Doc B), the plaintiff was suspended from duty and convened to attend a disciplinary committee on Friday The disciplinary proceedings were initiated following the complaint reported by two employees of the defendant company, Mr Balaghee and Mr Rambhujun against the plaintiff. The reproach was to the effect that soon after the company director Mr Ravi Rambujoo left, the plaintiff uttered words which were mentioned in the letter Doc A and which according to the defendant company, were offensive, were a threat to cause bodily harm to the company director and amounted to gross misconduct. The letter also informed the plaintiff the witnesses present

2 have corroborated the offensive words mentioned by the plaintiff. The plaintiff assisted by a labour officer, Mr Salim Curmoula appeared before the disciplinary committee composed of the Finance Manager Mr Ravi Sookur. The company director Mr Ravi Rambujoo was present during the proceedings of the disciplinary committee. Mr Balaghee and Mr Rambhujun deposed before the committee. The plaintiff gave his version and denied the charge of having uttered the words as per the contents of Doc B after the company director had left on the material day. On , the company director issued a letter, Doc C, informing the plaintiff that he was being dismissed from work with effect as from Monday in the light of the disciplinary committee which found the charges against him having been upheld. The plaintiff deposed in support of the averment of the plaint. In his employment with the defendant as storekeeper from to , he had to place orders for materials, to take delivery of goods and give the tools to the other employees. He also kept a record of the attendance of the employees. He worked on a 5-day basis from 07 h 00 t0 17 h 00 and earning Rs per month. On , he was on the roof of a building under construction found at Flic-en-Flacq, recording the presence of the workers. The company director came up there and asked him about the daily report sheets. When he informed the company director that he had not filled them in, the company director got angry and swore at him. He did not say anything to the company director Mr Ravi Rambujoo. Later, when he got down, Mr Vinesh Balaghee told him that disciplinary actions will be taken against him for not having filled in the daily report sheets. He worked as usual but at the end of the working day, he was informed not to call at the site of construction on the following day. When he called at the office on , he was suspended from duty. He claims that he was not given a fair hearing in as much as the company director Mr Ravi Rambujoo was present throughout the holding of the disciplinary committee to hear the charge that the plaintiff had allegedly sworn at him, the company director Mr Ravi Rambujoo. His dismissal was unjustified and he was thus claiming severance allowance and wages in lieu of notice in the total sum of Rs with 12 % interest on the severance allowance payable from the date of termination of employment to the date of payment. The plaintiff also called Mrs Jyoti Prayagsingh, Labour officer to depose. She registered the complaint the plaintiff made on 25th May regarding his dismissal which he considered was not based on a valid reason, Doc D. She produced the statement of emolument of the plaintiff, Doc E. The defendant called the Labour Officer Mr Salim Carmoula who assisted the plaintiff during the disciplinary committee, Mr Ravi Sookur, Finance Manager and Mr Kaviraj Rambhujun to depose on its behalf. Mr Ravi Sookur, Finance Manager of the defendant company stated that the charge was read to the plaintiff and he was given the opportunity to give his version after the defendant company called two witnesses to depose on its behalf. The company director being the sole shareholder of the company and the company having a small staff, the company director was present all throughout the proceedings of the disciplinary committee and therefore had the benefit of hearing what the plaintiff had to say concerning the reproach made by the two other employees of the company against the plaintiff involving him. He stated that the company director being the sole director of the defendant company had to be involved in every decision taken by the defendant company. He could not as employee run the company on behalf of the company director. Mr Sookur asked the plaintiff whether he had any objection to the presence of the company director and the plaintiff s stand was that he did not have any provided that the

3 company director did not put any questions. The version of the employees were straightforward and corroborated each other s version. The defendant company found that the plaintiff had committed a serious offence and that it could not tolerate this type of behaviour. Mr Kaviraj Rambhujun, quantity surveyor of the defendant company deposed. He reported the matter to the management when the plaintiff displayed a rather aggressive attitude behind the back of the company director and used filthy words against him. When the company director was present, the plaintiff had already started to complain. When he left, the plaintiff continued to talk to Mr Balaghee about the fact that the company director wanted to say that he was not doing his job correctly, to which he was in disagreement and started to behave in an aggressive manner. He could not recall exactly the filthy words the plaintiff used towards the company director but he said Doc B fully particularised the words the plaintiff used based on the statement he gave to the management regarding the incident. I have duly considered the submission of Counsel appearing for the defendant. The defendant company called the chairperson of the disciplinary committee Mr Sookur who explained that when the version of the plaintiff was pitched against the version of two the employees who were called to depose on behalf of the defendant company, the version of both employees were found to be straightforward and they corroborated each other s version. The disciplinary committee found that the injuries and the threats uttered by the plaintiff in presence of the two witnesses amounted to a serious offence. In court, one of the witnesses who deposed before the disciplinary committee on behalf of the defendant company Mr Kaviraj Rambhujun testified about the aggressive behaviour displayed by the plaintiff on the material day. He could not recall the filthy words and threats used by the plaintiff. But it is clear that it was based on his statement to the management giving a full account of the impugned words used by the plaintiff that disciplinary proceedings were initiated against the plaintiff. The impugned words were put to the plaintiff in court and he has denied having uttered them. At one stage, it seemed that there was a discrepancy between the version of the plaintiff before the disciplinary committee and that which he gave in court regarding whether he replied when the company director when Mr Rambujoo questioned him about the unfilled sheets. But this was cleared during the cross-examination of Mr Salim Curmoula who assisted the plaintiff during the disciplinary committee when he stated that the plaintiff gave the same version both before the disciplinary committee and before this court in that he replied to Mr Rambujoo that the foreman had not provided him with the necessary data. Now, in the light of the straightforward version of Mr Kaviraj Rambhujun, the version of the defendant company appears to be credible that the plaintiff uttered the filthy words and behaved aggressively on the material day. Hence, the chairman of the disciplinary committee Mr Ravi Sookur was entitled to reach the conclusion that the version of Mr Kaviraj Rambhujun which was corroborated by that of Mr Balaghee proved that the plaintiff uttered the impugned words. As such, the disciplinary committee was right in finding that the behaviour of the plaintiff amounted to gross misconduct and that the defendant company could not tolerate such a behaviour towards the company director. The defendant company was entitled to find that the dismissal of the plaintiff was warranted.

4 The plaintiff has proved that he was in the continuous employment of the defendant and that the defendant terminated his employment. The burden rests on the defendant to prove that his dismissal was justified. In Sagar Hotels & Resorts Ltd v Vinaye Keegan Sewdin [2012 SCJ 122], it was observed that an employer who is contemplating to terminate the employment of an employee because of suspected gross misconduct must by virtue of s 32 (2) (a) of the (Labour) Act provide a hearing otherwise any dismissal would be deemed to be unjustified. In the present case, Counsel for the defendant has submitted that the statutory requirement of affording an opportunity to answer the charge has been afforded to the plaintiff and that as such, the plaintiff has been afforded a fair hearing. Admittedly, the plaintiff does not dispute that he was given the opportunity to put his version before the committee. S 38 (2) of the Employment Rights Act 2008 provides as follows: 38. Protection against termination of agreement (1) (2) No employer shall terminate a worker s agreement- (a) for reasons related to the worker s misconduct, unless- (i) he cannot in good faith take any other course of action; (ii) the worker has been afforded an opportunity to answer any charge made against him in relation to his misconduct; (iii) he has within 10 days of the day on which he becomes aware of the misconduct, notified the worker of the charge made against the worker; (iv) the worker has been given at least 5 working days notice to answer any charge made against him; (v) the termination is effected not later than 7 days after the worker has answered the charge made against him, or where the charge is subject of an oral hearing, after the completion of the hearing; S 38 of the Employment Rights Act 2008 is almost similar to s 32 of the now repealed Labour Act which has been the subject of many pronouncements by the Supreme Court. Thus, the Supreme Court in Sakoontala Nutchedy v Hemisphere Sud Ltd [2008 SCJ 210] reproduced the comments made in Tirvengadum v Bata Shoe ( Mauritius ) Co. Ltd [1979 MR 133] as follows: The hearing is not required to be conducted with the formality and all the exigencies, whether procedural or evidential, appropriate to a court or tribunal It is common ground that the company director was present throughout the proceedings of the disciplinary committee to hear the charge that behind his back, the plaintiff swore at him and uttered threats to assault him. He did not put any questions to the plaintiff when he sat listening to the disciplinary proceedings. The labour inspector who assisted the plaintiff did not object to the composition of the members of the disciplinary committee.

5 In the present case, the very presence of the company director, throughout the disciplinary proceedings would be tantamount to saying that he sat as a member of the committee. This court is comforted in its view based on the explanation of Mr Ravi Sookur to justify the presence of the company director during the disciplinary committee as resting on the fact that the company director had to be involved in every decision taken by the defendant company and that he could not substitute himself to the company director regarding decisions of the senior staff of the company. True it is that an employer retains the power of taking the decision regarding its staff. The employer may terminate the employment of one of its staff after having complied with s 38(2) of the Employment Rights Act This is what the company director did when he signed the plaintiff s letter of dismissal. However, the company director should not have been directly involved in the decision of the disciplinary committee. For it is clear that this is what the company director did based on the version of Mr Ravi Sookur that the purpose of the presence of the company director throughout the disciplinary proceedings was to enable him to assess the veracity of what the plaintiff had said on the material day against him. In Robert Tranquille v P. R. Limited [1996 SCJ 366] cited by counsel for the defendant, it was pointed out that the notion of fair hearing also comprises the idea that a person who may appear to be biased should not sit on the disciplinary committee. The test to be applied for bias is whether there is a reasonable suspicion of a real likelihood of bias. This court is of the view that as member of the disciplinary committee, the company director might not have kept an impartial mind as the filthy words were destined to him. The small structure of the company staff cannot justify the presence of the company director in the disciplinary committee. He cannot be judge and party at the same time. There subsists a reasonable suspicion of a real likelihood of bias on the part of the company director who sat to hear the proceedings of the disciplinary committee instituted against the plaintiff who made him the subject of a verbal attack to enable the company director to assess the evidence and in the light of which the decision was taken to sack the plaintiff as the charge was found proved. Hence, the plaintiff was not given a fair hearing as envisaged by s 38(1) (ii) of the Employment Rights Act His summary dismissal was therefore unjustified. It is not disputed that the emoluments of the plaintiff amount to Rs The defendant has not challenged the claim for 22 days wages from to in lieu of notice amounting to Rs The plaintiff has 43 months continuous employment with the defendant. The amount of severance allowance he is entitled to is Rs made up as follows: Rs x 3 months x 43/12 years. I accordingly order the defendant company to pay to the plaintiff the total sum of Rs as per the plaint with interest at the rate of 12 % per annum on the severance allowance payable from the date of termination of employment to the date of payment. R. Seetohul-Toolsee Vice President, Industrial Court. 19th September 2013.