Saint Aubin Limitée v Alain Jean François Doger de Spéville (Mauritius)

A constructive dismissal arises when an employer unilaterally imposes, without consent, a substantial change to the employee’s contractual conditions. The employee may treat the change as a dismissal, but need not do so. The statutory question whether termination is unjustified is separate from whether the employer used a wrongful contractual method. A genuine commercial reorganisation may provide a valid reason where the employee’s post is removed or becomes redundant. It does not do so where the post remains unchanged and the employer simply wishes to replace the employee. An employee is not obliged to accept another post, even if it offers equal or better prospects.

Saint Aubin Limitée employed Alain Jean François Doger de Spéville as transport and workshop manager. After he helped establish a distillery, the company instructed him to work there full time and arranged for another employee to take over his original post. He treated the change as constructive dismissal and claimed notice indemnity and punitive severance allowance for unjustified termination.

The Industrial Court accepted the claims on 14 October 2008. The Supreme Court dismissed the employer’s appeal on 19 May 2010. The Privy Council considered whether the change was substantial and unilateral, whether termination was unjustified under the Labour Act, and whether jurisdictional or constitutional irregularities required the judgments to be set aside.

The Board, in the judgment delivered by Lord Mance, dismissed the appeal and ordered the appellant to pay the respondent’s costs, subject to any written submissions showing good cause to the contrary within 14 days.

1. Jurisdictional and constitutional grounds. The appellant accepted that the Board could determine the issues from the transcripts and the facts found below, so a remittal would confer no practical advantage. The challenge based on sections 120 and 124 of the Courts Act was not raised before the Supreme Court and was unsupported by contrary evidence. The necessary steps for the Vice-President’s secondment were presumed to have been properly taken.
2. Delay and delivery of judgment. Any breach of the reasonable-time guarantee in section 10(8) of the Constitution, or of the explanation requirement in section 11(1) of the Industrial Court Act 1973, did not justify setting aside an otherwise unimpeachable judgment where both parties knew of the decision and exercised their appeal rights in time without prejudice. Undue delay should first be assessed on the merits to determine whether it created a real prospect of impairment of a fair conclusion. The Vice-President’s judgment was thorough and well reasoned. A suitably worded explanation accompanying a judgment filed for registry inspection could in any event satisfy section 11(1).
3. Constructive dismissal. Following Adamas Limited v Cheung [2011] UKPC 32, constructive dismissal occurs where the employer unilaterally imposes a substantial modification of the original contract conditions. The change from transport and workshop manager to full-time distillery manager involved different work, duties and responsibilities. It was imposed without prior discussion and reiterated as a fait accompli. The respondent was entitled to treat himself as constructively dismissed.
4. Justification. Under section 36(7) of the Labour Act, the question whether termination is unjustified is distinct from the contractual question whether the employer used the wrong method. The relevant issue was whether there was a valid reason to terminate the respondent’s employment as transport and workshop manager. The commercial principle illustrated by Cayeux Ltd v de Maroussem 1974 MR 166 did not require the court to second-guess a genuine decision to abolish a division or make a post redundant. That situation did not exist here. The original post remained unchanged, the respondent remained suitable for it, and the employer’s wish to transfer him to another role and replace him was not a valid reason for termination.

1. Privy Council: The appeal was dismissed. The appellant was ordered to pay the respondent’s costs, subject to written submissions within 14 days.
2. Supreme Court of Mauritius: The employer’s appeal was dismissed on 19 May 2010, upholding the Industrial Court’s conclusions on constructive dismissal and unjustified termination.
3. Industrial Court of Mauritius: The Vice-President accepted the respondent’s claims on 14 October 2008 and awarded notice indemnity and severance allowance at the punitive statutory rate.