MAURITIUS SHIPPING CORPORATION LTD v THE EMPLOYMENT RELATIONS

TRIBUNAL

2017 SCJ 308

Record No. 113499

THE SUPREME COURT OF MAURITIUS

In the matter of:-

The Mauritius Shipping Corporation Ltd

Applicant
v

The Employment Relations Tribunal

Respondent

In the presence of:-

Dhanraj Kissoon & Ors

Co-Respondents

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JUDGMENT

Following the termination of the employment of co-respondent no. 1 and co-

respondents nos. 2 to 11 by the applicant on 16 November 2015 and 05 January 2016
respectively, the co-respondents caused complaints to be registered with the Permanent
Secretary of the Ministry of Labour, Industrial Relations, Employment and Training
contesting the reasons given by the applicant in justification of their redundancy. As no
settlement could be reached between the parties, the Permanent Secretary, in conformity
with section 39B (6) (a) of the Employment Rights Act 2008 (the Act), referred the matter
to the Tribunal (the respondent) on the following terms of reference: whether the reduction
of the workforce affecting the Disputants is justified or not in the circumstances.

After a consideration of the documentary and testimonial evidence adduced before it,
the Tribunal, in its award of 09 May 2016, found on a balance of probabilities that the
reduction of workforce was unjustified and ordered the applicant to pay to the co-
respondents (then complainants) severance allowance in accordance with section 46(5) of
the Act.
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Feeling aggrieved, the applicant now seeks a judicial review of the award and moves
for leave to apply for same accordingly on the following grounds: (a) exceeding jurisdiction
(ultra vires); (b) error of law; (c) error of facts; (d) ignoring relevant considerations and taking
irrelevant ones into account; and (e) irrationality and unreasonableness of inference,
conclusions and award.

The respondent is not but the co-respondents are resisting the motion on the
grounds that (i) the application does not disclose an arguable case and (ii) it has not been
made promptly.

The submissions made on behalf of the co-respondents under (i) were that
grounds (c), (d) and (e) on which the applicant relies in support of its motion for leave in
effect challenge the Tribunals appreciation of facts and that therefore this Court is
essentially being asked to sit on appeal on the decision of the Tribunal and to review its
findings of fact which are based on testimonial and documentary evidence adduced before it.
Learned Counsel relied on Luchmun v The Mauritius Sugar Terminal Corporation [1990
MR 343], Naidoo v The Public Service Commission & Anor [2007 SCJ 77] and Francis &
Ors v The Employment Relations Tribunal [2014 SCJ 266] in support of their
submissions.

With regard to grounds (a) and (b) of the application for leave, learned Counsel for
co-respondent no. 1 argued that had the co-respondents complaints before the Tribunal
been based solely on a breach of the provisions of section 39B (2) and (3) of the Act, or had
the Tribunal in making the award grounded its decision on a breach of the said provisions,
then by virtue of section 39B (11) of the Act, he would have had no qualms in conceding that
the Tribunal would have exceeded its jurisdiction and fallen into error of law in determining
the matter. However, so argued learned Counsel, as it is apparent from the statement of
case of the co-respondents before the Tribunal, more particularly paragraphs 9 and 10 of the
statement of case of co-respondent no. 1 and paragraphs 9 to 44 of the statement of case of
co-respondents nos. 2 to 11, the co-respondents case was not restricted to non-compliance
with the provisions of section 39B (2) and (3) of the Act but also pertained to the unjustified
reduction of workforce allegedly due to economic reasons. He added that in fact the main
issue before the Tribunal and upon which it was called upon to make its award was whether
there was justification in the applicants (then respondent) decision to reduce its workforce
and terminate the co-respondents contract of employment based allegedly on economic
reasons. As such, by virtue of section 39B (9) and (10) of the Act, the Tribunal did not act
ultra vires but had jurisdiction to determine the complaints referred to it by the Permanent
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Secretary and make the award, so argued learned Counsel for co-respondent no. 1.
Learned Counsel further added that in so far as co-respondent no. 1 was concerned since it
was not disputed that he was not a member of the Trade Union, therefore, the provisions of
section 39B of the Act did not find its application to his case. The only issue which the
Tribunal had to determine, therefore, was whether the termination of his employment based
on a reduction of workforce was unjustified or not.

Addressing us on (ii), learned Counsel for co-respondent no. 1 argued that although
the application has been made within the delay of three months, being given that the
decision sought to be challenged was that of the Employment Relations Tribunal which had
upheld the co-respondents complaint of unjustified redundancy, time was, therefore, of the
essence and the applicant in waiting for 2 months has failed to act with promptness in
seeking leave for judicial review of the decision of the Tribunal. Learned Counsel relied on
Bagha v The Public Service Commission [1996 SCJ 146] and Securiclean (Mauritius)
Ltd v The Ministry of Local Government & Outer Islands & Anor [2015 SCJ 327].

Counsel for co-respondents nos. 2 to 11 concurred with the above submissions.

Responding to the arguments advanced on behalf of the co-respondents in support

of the first limb of their objections, learned Counsel for the applicant submitted that since the
Tribunal has concluded on the evidence adduced before it and found that the applicant had
breached the provisions of section 39B (2) and (3) (a) of the Act in that (i) there was no
formal notification to the Permanent Secretary of the list of employees to be made redundant
at least 30 days before the reduction of workforce and (ii) there was no consultation with the
Trade Union on the issues specifically mentioned in section 39B (3) (a) of the Act, therefore,
the Tribunal had acted in excess of its jurisdiction.

On the issue of arguability, learned Counsel referred us to the applicants affidavit

and the award of the Tribunal and submitted that the latter has made an error of fact by
finding established that there was no consultation with the Trade Union when the evidence
points to the contrary. He added that the Tribunal further allowed itself to be swayed by
irrelevant matters in coming to the conclusion that the applicant appeared to be solvent.

In reply to the second limb of the co-respondents objections, learned Counsel for the
applicant submitted that for obvious reasons he could not from the Bar formulate the reasons
why the applicant did not act with celerity. He conceded that an affidavit ought to have been
put in but that has not been done. He added that a second affidavit could only be filed in
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rebuttal to an affidavit from the co-respondents. As the co-respondents have not filed any
affidavit and have objected to leave being granted, he was precluded from filing a second
affidavit. He, however, pointed out that what is material is that the application is not time
barred and has been entered within the time limit of three months.

Issue of jurisdiction

We have considered the arguments of Counsel on both sides. We have also

scrutinised the applicants affidavit and annexed documents. It is apparent from the
statement of case filed by co-respondent no. 1 before the Tribunal (Annex 3 of the
applicants affidavit) that the point in dispute was whether the reduction of workforce
affecting the disputant is justified or not in the circumstances. A description of the
circumstances is to be found mainly in paragraphs 8 to 29 of his statement of case.
Although a perusal of paragraph 28 would at first give the impression that co-respondent
no. 1 was relying on a breach of section 39B (2) and (3) of the Act, however, this false
impression is dispelled when the statement of case is read in its entirety, and more
particularly paragraph 29 thereof.

We may say that it is the same situation for co-respondents nos. 2 to 11 as is

apparent from their statement of case (Annex 4 of the applicants affidavit). True it is that
they too relied on a breach of section 39B (3) of the Act. However, this was not their only
grievance against the applicant. They also complained that their redundancy was unjustified
for the reasons which they have elaborately set out in their statement of case. We may also
refer to their prayers to the Tribunal which were A. to find that the reduction of workforce by
the Respondent, and in particular their redundancies, to be unjustified; B. to order that
Complainants either be reinstated to their former employment with payment of remuneration
from the date of their termination of employment to the date of reinstatement, or be paid
severance allowance in accordance with section 46(5) of the ERtA, as the Complainants
may consent to.

The averments in the co-respondents statement of case point to a combination of a

non-compliance of section 39B (2) and (3) of the Act and unjustified reduction of workforce.
Was this amalgamation enough by itself to oust the Tribunals jurisdiction? We do not think
so. As the Tribunal was faced with an overlapping of the two issues, it could not do
otherwise than consider both. We note that in determining the second issue, the Tribunal
went into an elaborate and lengthy analysis of the financial situation of the appellant, the
reasons and the criteria adopted for the reduction in workforce, in arriving at its decision.
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Furthermore, as we stated earlier, the subject matter of the Permanent Secretarys referral to
the Tribunal was whether the reduction of the workforce affecting the Disputants is justified
or not in the circumstances. We, therefore, take the view that the Tribunal had jurisdiction
to hear and determine the issue referred to it under section 39B (6) (a) of the Act.

Issue of arguability

We reiterate what was said by this Court in Francis (supra) citing with approval
Luchmun (supra) and Naidoo (supra) that the purpose of a judicial review is to look at the
legality of a decision and at the decision making process and not to act as a court of appeal.

We, accordingly, agree with the arguments of learned Counsel for co-respondent
no. 1 that having regard to the applicants averments in its affidavit in support of the grounds
on which we are being asked to review the decision of the Tribunal, we are in effect being
asked to sit on appeal on the merits of the award of the Tribunal which is clearly outside the
scope of our jurisdiction in an application for judicial review.

Issue of promptness

We endorse the arguments of learned Counsel for co-respondent no. 1 that the
present case is of the type requiring celerity from the applicant. As established by the facts
of the present case, the co-respondents were made redundant in November 2015 and
January 2016. The co-respondents complained of unjustified reduction of workforce to the
Tribunal. The latter was required by law to give its award within 30 days of the date of
the complaints referred to it (vide section 39B (8) (a) of the Act). The Tribunal gave its
award on 09 May 2016, within the strict time limit imposed upon it by law, and ordered the
applicant to pay to the co-respondents severance allowance on terms specified in the award.
The present application for leave for judicial review was lodged on 20 July 2016 and served
on the respondent on 21 July 2016 and the co-respondents on 21, 22 and 23 July 2016.
We can safely presume that in view of the present application, the applicant has not satisfied
the award of the Tribunal.

As stated by this Court in Securiclean (supra):

Those who wish to challenge decisions and/or failures to make

decisions must be prepared to act promptly if they are to assert their rights.
The requirement to proceed promptly is even greater where the respondent or
a third party is likely to or has entered into commitments on the faith of the
challenged decision; where such challenge would cause substantial hardship
or substantial prejudice to the rights of third parties
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We find also relevant the following extracts from Bagha (supra) and Karamuth &
Ors v Universal Hotels Ltd & Ors [1992 SCJ 420] cited with approval in Securiclean
(supra):

The purport of order 53 r.4 is clearly set out in Supreme Court

Practice 1993, Vol. 1 at page 857:-

Delay in applying for relief. Application for leave to move for judicial
review must be made promptly, which in this context means as soon
as practicable or as soon as the circumstances of the case will allow,
and in any event such application must be made within three months
from the date when grounds for the application first arose [See r.4(1);
see also S.C.A. 1981, s. 31(6)].. It is sometimes thought that an
applicant for judicial review is always allowed 3 months in which to
make his application for leave, and provided that he lodges it within
that period leave cannot be refused on the grounds of delay. That is
not so. The primary requirement laid down by the rules (r.4(1)) is that
the application must be made promptly, followed by the secondary
provision .... and in any event within three months... Thus, there can
be cases where, even though the application for leave was made
within the 3-month period, leave might be refused because, on the
facts, the application had not been made promptly (for an example of
such a case see: R. v. Independent Television Commission, ex p. TV
NI Ltd., The Times, December 30 1991, C.A.). [Emphasis not ours]

[]

In Karamuth & Ors v. Universal Hotels Ltd & Ors [1992 SCJ 420]
another division of the Court said:-

....First, we must bear in mind that the underlying purpose behind

Order 53 is that an application for judicial review, like the present one,
must be dealt with as expeditiously as possible, as explained in
Murdaye. [Emphasis not ours]

[]

As monetary compensation is at the basis of the award to the applicants former

employees, this challenge of the Tribunals award is likely to cause substantial hardship or
substantial prejudice to the rights of the co-respondents. In the particular circumstances of
the present case, the applicant ought to have acted with celerity and diligence in lodging the
present application. It was, therefore, not sufficient that the application has been made
within the three months time limit. The applicant ought to but has failed to act expeditiously
and has also failed to advance any reasons for not having done so. The reasons put
forward by learned Counsel for the applicant that he was precluded from putting a second
affidavit is untenable. It would have been perfectly legitimate for the applicant to make a
motion to that effect and obviously the co-respondents would have been free to take a stand.
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However, at the end of the day, it would have been this Courts prerogative to rule on the
matter. We, accordingly, find that the applicant has not satisfied the requirement of
promptness, as well.

For all the above reasons, leave is refused and the application is set aside.
With costs.

A. Hamuth
Judge

N. Devat
Judge

21 August 2017

Judgment delivered by Hon. N. Devat, Judge

For Applicant : Mr P. Chuttoo, Attorney-at-Law

Mr M. Gobin, of Counsel

For Respondent : Mrs R. Camiah, Principal State Attorney

Mrs P. Ramjeeawon-Varma, Principal State
Counsel

For Co-Respondents No. 1 : Mr G. Kissoon, Attorney-at-Law

Mr S. Mohamed, of Counsel

For Co-Respondents Nos. 2 to 11 : Mrs A. Jeewa, Attorney-at-Law

Mr V. Reddi, of Counsel