Adamas Limited v Yong Ting Ping How Fok Cheung (Mauritius)

An employee does not accept a proposed variation of an employment contract merely by remaining in employment. Consent to a substantial change requires an express or implied manifestation of valid and freely expressed will. Continued performance of the original contractual duties, and silence after the employee has rejected the change, do not by themselves establish consent.

An employee faced with a demand for work outside the original contract is not required to treat the contract as terminated and claim constructive dismissal. Where the original job remains capable of performance, the employee may continue it and refuse the additional work. The employer must then decide whether to withdraw the demand or dismiss.

The respondent was employed by the appellant until her dismissal. She brought proceedings for unjustified dismissal before the Industrial Court, which awarded her compensation, including a statutory sum under section 36(7) of the Labour Act 1975. The Supreme Court of Mauritius upheld the award on different reasoning.

The appellant appealed to the Privy Council. It argued that, even if jewellery deliveries were outside the respondent’s original duties, she had accepted a contractual variation by continuing in employment after the appellant required her to undertake them. The central issue was whether continued employment, without more, amounted to express or implied consent to the variation.

Appeal dismissed. The respondent’s dismissal for refusing to deliver jewellery was unjustified.

1. The Board accepted the concurrent findings that the requests made in December 2001 were requests for favours, not instructions founded on a contractual duty.
2. The appellant relied on three Mauritian decisions concerning constructive dismissal: Periag v International Beverages Ltd (1983 MR 108), The Constance & La Gaiété S E Co Ltd. v Bhungshee (2000 SCJ 67) and Joseph v Rey & Lenferna Ltd. (2008 SCJ 342). Those decisions concerned employees who had accepted a new post or altered terms by conduct. They did not determine the different situation where an announced change was outside the original contract, the original job remained capable of performance, and the employee could await an actual instruction.
3. The Board rejected a broad reading of Periag under which continued employment after any breach would amount to acceptance of new conditions. Whether conduct is sufficiently serious to justify termination depends on the circumstances. Even a repudiatory demand does not oblige the employee to terminate the contract. The employee may continue performing the original job, leaving the employer to decide whether to withdraw the demand or dismiss.
4. The underlying principle was that a contractual variation requires a valid and freely expressed manifestation of will. Mere continuation of work under the original contract, silence after a clear rejection, and omission of the issue from a later complaint did not establish consent. The Board preferred the principle stated in Raquin et Trappiez c. Société Jacques Marchand (No de pourvoi: 84-41902 84-41903).
5. Jewellery deliveries were not within the respondent’s original duties and could not be brought within clause (g) merely by the appellant’s assertion. The respondent never expressly or impliedly agreed to the variation. Her refusal on 25 May 2002 was therefore lawful, and the dismissal for that refusal was unjustified.

The appeal was dismissed.

1. Privy Council — In [2011] UKPC 32, the Board dismissed the appeal.
2. Supreme Court of Mauritius — On 12 May 2009, Balancey and Domah JJ upheld the Industrial Court’s award, on different reasoning.
3. Industrial Court — On 26 September 2007, the court awarded compensation for unjustified dismissal.