De La Haye v Air Mauritius Ltd

A termination made under an agreed notice clause remains a termination by the employer. Contractual permission for notice does not exclude statutory severance protection or make the termination automatically justified. Successive fixed-term contracts can constitute continuous employment where the interval between agreements does not exceed 28 days. Entitlement to severance allowance nevertheless depends on the statutory conditions, including whether the termination was unjustified. An appellate court should not re-evaluate a specialist tribunal’s assessment of justification unless it reveals an error of principle or lacks a proper evidential basis.

The appellant, a pilot employed under successive four-year contracts, claimed severance allowance after the respondent gave six months’ notice under the final contract during an economic downturn. The Industrial Court found that the termination was economically justified. The Supreme Court of Mauritius held that termination under the agreed notice clause was not a unilateral termination capable of engaging section 46 of the Employment Rights Act 2008.

The appeal concerned whether the notice was a termination by the employer, whether the successive contracts amounted to continuous employment, and whether the termination was justified. The appellant also sought to raise new arguments concerning the notice’s validity and statutory notification requirements.

The Board dismissed the appeal. The contract was terminated by the respondent, but the termination was justified.

1. Termination under a notice clause. A notice given by one party under a contractual power to terminate is a unilateral termination by that party. The fact that the contract anticipated and permitted the notice does not alter its character as an act bringing the contract to an end. Such a termination is capable of triggering section 46, subject to its other requirements.

2. Contractual agreement on notice does not, by itself, exclude section 46 or make the termination automatically justified. That would allow statutory protection against prohibited grounds of termination and dismissal for misconduct to be circumvented.

3. Continuous employment. Successive fixed-term agreements fall within the statutory definition where the interval between them does not exceed 28 days. The definition is designed to recognise substantial employment under closely successive contracts. The appellant also satisfied the minimum 12-month qualification in any event.

4. Justification. The Board accepted the Industrial Court’s finding that the termination was justified on economic grounds. It would not re-appraise that evaluative finding, made by a specialist tribunal after hearing the evidence, absent an error of principle or a lack of proper basis.

5. New arguments. The Board refused to entertain fresh grounds not advanced below. They might require further evidence and the considered conclusions of the local courts. Although a pure point of law may sometimes be admitted where no injustice would result, these arguments were neither properly raised nor arguable.

6. A fixed-term contract may validly provide for termination by notice before its expiry. The statutory notice regime for agreements other than fixed-period contracts does not prohibit an agreed notice mechanism in a fixed-term contract.

7. Even if advance notification to the Minister of Labour was required, it was not a condition precedent to the validity of the notice such that non-compliance rendered the termination ineffective.

• Industrial Court of Mauritius: found that the termination was economically justified. It did not need to determine continuous employment or the legal character of the termination.
• Supreme Court of Mauritius: held that termination under the agreed notice clause was not a unilateral termination engaging section 46.
• Privy Council: dismissed the appeal, holding that the termination was by the employer but justified.