Seetohul v Omni Projects Ltd

Under the Labour Act 1975, unauthorised absence exceeding two consecutive working days without good and sufficient cause may constitute a repudiatory breach bringing the employment contract to an end, irrespective of whether the worker subjectively intended to leave. The written-ultimatum safeguard in section 32(4) applies where the employer relies on deliberate abandonment, not on the separate statutory breach in section 30(4). The concepts may overlap but remain distinct. Abandonment may occur without absence, including by denunciation of the job. A purported offer to re-engage must be accepted according to its terms.

Dr Seetohul, an Education Officer employed by Omni Projects Ltd, left work to attend an international conference after his leave application had been refused. He was dismissed after failing promptly to resume work.

The Industrial Court found in his favour and awarded remuneration and severance allowance. The Supreme Court of Mauritius allowed the employer’s appeal and reversed that decision. The further appeal concerned whether the employer’s case was one of deliberate abandonment requiring notice under section 32(4) of the Labour Act 1975, or repudiatory breach under section 30(4), and whether the employer’s letter amounted to an offer to re-engage.

1. Disposition. Lord Hughes, giving the judgment of the Board, concluded that the Supreme Court had made no error. The appeal was dismissed.
2. Repudiatory breach and abandonment. Section 30(4) concerns a repudiatory breach. Unauthorised absence without good and sufficient cause for more than two consecutive working days may bring the employment agreement to an end, whether or not the worker subjectively wishes to end the employment. Section 32(4), by contrast, concerns deliberate abandonment and requires a subjective intention to abandon the job. The two situations may overlap, but they are not identical.
3. The written notice and minimum 24-hour period in section 32(4) protect a worker where the employer relies on deliberate abandonment. They do not impose an additional requirement where the employer relies on the repudiatory breach addressed by section 30(4). Abandonment is not confined to absence coupled with an intention not to return; it may also occur without absence, for example through denunciation of the job.
4. The Board considered the distinction in Mauritius Agricultural & Industrial Co Ltd v Permanent Secretary, Minister of Labour & Social Security on behalf of Auckloo [1974] MR 34 well founded. Although that case concerned failure to notify illness under earlier legislation, its underlying reconciliation of the two statutory provisions applied equally to section 30(4) of the Labour Act 1975. The subsequent statutory amendments did not alter the law applicable to the dispute.
5. The letter of 23 September was not an offer to re-engage. The employer’s reservation of its right to take further action was inconsistent with that construction. Even if the letter could be read as an offer, it required prompt attendance according to its terms. Arriving at 2 pm on 26 September and announcing an intention to return on the following Monday did not satisfy that requirement. In any event, even on the assumption that the letter operated under section 32(4), the 24-hour period had already expired.

1. Privy Council: The further appeal was dismissed: [2015] UKPC 5.
2. Supreme Court of Mauritius: The employer’s appeal was allowed and the Industrial Court’s decision was reversed.
3. Industrial Court: The employee’s claim for unlawful dismissal succeeded.