Smegh (Ile Maurice) Ltée v Dharmendra Persad (Mauritius)

Under the Labour Act 1975, the Industrial Court, not the employer’s disciplinary committee, decides whether a dismissal was unjustified. The committee’s findings are not conclusive; its function is to give the worker an opportunity to answer the charges. Justification must be assessed on material of which the employer was, or ought reasonably to have been, aware when the dismissal occurred. This does not prevent reliance on fresh evidence that merely corroborates the case already put to the employer. Appellate interference with factual findings requires an error of principle, perversity or manifest error.

The appellant employed the respondent as its financial controller and summarily dismissed him for three alleged acts of misconduct. The Industrial Court of Mauritius found the dismissal unjustified and awarded wages in lieu of notice and severance allowance. The Supreme Court of Mauritius dismissed the employer’s appeal on 22 June 2010.

Before the Privy Council, the principal issues were the statutory role of the disciplinary committee and whether the Industrial Court had infringed the Northern Transport principle by relying on evidence from witnesses who had not appeared before the committee.

1. Appeal dismissed. The Industrial Court’s factual conclusions were plainly open to it. They were neither perverse nor manifestly ill-founded, and the Supreme Court was right not to interfere.
2. Role of the disciplinary committee. The Board approved the approach in G. Planteau De Maroussem v Dupou [2009] SCJ 287. Sections 32(3)(b) and 36(7) of the Labour Act 1975 expressly recognise the Industrial Court’s jurisdiction to decide whether termination was unjustified. The disciplinary committee has no statutory power to determine that issue. Its function under section 32(2)(a) is procedural: to give the worker an opportunity to answer the charges. Its findings and recommendations are not conclusive.
3. Material relevant to justification. The Board endorsed The Northern Transport Co Ltd v Radhakisson [1975] SCJ 223 and Mauritius Co-operative Savings and Credit League Ltd v Khulshid Banon Muhomud [2012] SCJ 107. Whether dismissal was justified must be determined by reference to material of which the employer was, or ought reasonably to have been, aware at the time of dismissal. A worker cannot rely on a materially different case or on information which the employer could not reasonably have known.
4. Fresh corroborative evidence. That principle does not prevent a worker relying in court on fresh evidence which merely supports the case consistently advanced before the disciplinary committee. Evidence from senior group executives concerning matters within their responsibility could be imputed to the employer. In any event, the employer could have obtained statements from them and called them at the hearing. The respondent had not materially changed his account, so the principle was not infringed.
5. Appellate restraint and guidance. The appeal could succeed only for an error of principle, including asking the wrong question, or findings that were perverse or manifestly wrong. The Board added that employers should accurately record disciplinary hearings and provide the worker with a copy promptly. Written submissions on costs were directed within 28 days.

• Privy Council: In [2012] UKPC 23, dismissed the employer’s appeal from the Supreme Court of Mauritius.
• Supreme Court of Mauritius: On 22 June 2010, dismissed the employer’s appeal with costs.
• Industrial Court of Mauritius: On 13 October 2008, found the respondent’s dismissal unjustified and awarded the claimed wages in lieu of notice and severance allowance, with interest and costs.