Gunesh v The National Transport Corporation and another

In a wrongful-termination claim, the employee retains the ultimate legal burden of establishing wrongful dismissal. Where the employer relies on justification, the employer bears a distinct evidential burden to prove the facts supporting that defence. The burden does not shift as a single burden between the parties. An employer cannot rely at trial on a materially changed case from that advanced at the disciplinary hearing. On an appeal, concurrent factual findings will not generally be disturbed absent a violation of law or procedure which, once corrected, leaves the finding unsustainable.

Mr Rama Gunesh, head of stores at the National Transport Corporation, claimed damages for wrongful termination following disciplinary proceedings concerning his use of an Immediate Quotation procedure to purchase nine bus main shafts. The Supreme Court of Mauritius, before Caunhye J, dismissed the claim. The Court of Civil Appeal dismissed his appeal.

Before the Privy Council, Mr Gunesh challenged the allocation of the burden of proof, the refusal to admit transcripts of the disciplinary hearing, and findings that he lacked authority and had failed to disclose a relevant tender. The Board also considered additional documentary evidence de bene esse. The central issues were whether the lower courts had reversed the burden of proof, whether the employer had changed its case, and whether concurrent factual findings could properly be disturbed.

The Board dismissed the appeal and refused permission for the additional evidence to be adduced.

1. Burden of proof. The Board permitted reliance on article 1315 of the Civil Code as a new point of law. The ultimate issue was whether the dismissal was wrongful, and the employee retained the legal burden on that issue. Where the employer raised justification, it had an evidential burden to adduce evidence proving the particular facts relied on for that defence. That was not merely a burden of raising the issue. The two burdens arose in different contexts; a single burden did not shift between the parties. The lower courts had applied this distinction correctly.
2. Disciplinary hearing evidence. Under the principle in Northern Transport Co Ltd v Radhakissoon ([1975] MR 228; 1975 SCJ 223), an employer seeking to justify summary termination cannot rely on grounds not relied upon at the disciplinary hearing. The transcripts were therefore admissible only if the employer had changed its case. No such change occurred. The additional witnesses addressed the same case rather than introducing a new one, so the trial judge was correct to exclude the transcripts. Documents already before the trial judge could be used on appeal.
3. Concurrent findings. The test stated in Devi v Roy ([1946] AC 508) applied to primary facts and inferences, including authority and wrongful-dismissal findings. The evidence concerning the uninitialled list, the slow-moving stock, and the undisclosed tender did not establish a qualifying error of law or procedure. The delay in delivering judgment was not relevant and had not been raised below. The remaining arguments, singly or cumulatively, could not satisfy the stringent appellate test.

1. Privy Council — dismissed the appeal from Mauritius and refused permission for additional evidence.
2. Supreme Court of Mauritius, Court of Civil Appeal — dismissed Mr Gunesh’s appeal.
3. Supreme Court of Mauritius, Caunhye J — dismissed the claim for damages for wrongful termination.