BARBE J. B. v SHELL MAURITIUS LTD.

2013 SCJ 202

Record No. 6647

IN THE SUPREME COURT OF MAURITIUS

In the matter of:

Benjamin Jocelyn Barbe
Appellant
v.

Shell Mauritius Ltd.

Respondent

JUDGMENT

This is an appeal from a judgment of the Magistrate of the Industrial Court dismissing the

appellant’s claim for severance allowance at the punitive rate on the ground of unfair dismissal

against his former employer, the respondent company.

The case for the appellant, then plaintiff, before the trial court was to the effect that he

had been in continuous employment with the respondent, then defendant, from 1 September

1988 until 24 October 2005. He was, on 4 October 2005, suspended from duty and convened

before a Disciplinary Committee on 7 October 2005. After the conclusion of the Disciplinary

Committee, his employment was terminated on 24 October 2005. The appellant had claimed

that the termination of his employment was unjust and unfair. Hence his claim for severance

allowance at the punitive rate.

In its defence, the respondent had admitted the averments of the plaint save and except

that the appellant was unfairly dismissed. It averred that the appellant’s employment was

terminated after a Disciplinary Committee had found that he had committed a gross misconduct

whilst in the course of his employment and the respondent could not in good faith take any other
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course of action, in the circumstances. The respondent had accordingly moved that the plaint be

dismissed.

In order to understand the issues, it is appropriate to set out the factual background to

the case. The gist of the complaint against the appellant before the trial court and which was

found proved by the Magistrate, was in connection with certain works carried out at the farm of

Messrs. Hardas at Surinam. According to Premchand Hardas, in 2003 he had contacted the

respondent company for the carrying out of certain works pertaining to gas installations, at his

poultry farm; these included both renovation and extension works.

When he got in touch with the appellant who was responsible for the relevant

department at the respondent company, the latter informed him that according to the new

company policy, the customer would henceforth have to bear the cost of all the works including

new installations which previously had been carried out at the expense of the respondent

company. The appellant further told him that if the extension works were carried out by the

company on his behalf, the cost would amount to Rs 70,000 per building. The appellant

proposed to Mr. Hardas that he could arrange with a private contractor, Mr. Latona, to have the

installations carried out at the cost of around Rs 40,000 to Rs 45,000 per unit. Mr. Hardas

agreed with this proposal which he believed was to his advantage and remitted a sum of Rs

300,000 in cash to the appellant for him to do the needful.

Subsequently the appellant secured a job in Madagascar and one Miss Bunwaree

replaced him in his former job. Mr. Hardas contacted her in respect of another extension to the

farm and discovered that the company policy had in fact never changed and that the company
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still bore all the costs in respect of new installations. Mr. Hardas informed Miss Bunwaree that

he had remitted money to the appellant in respect of extension works at his farm inasmuch as

the appellant had informed him that the company now charged the client for such works. He

also reported the matter to Mr. Lionet, the respondent’s Distribution Manager, and the latter

advised him to make a formal complaint. Mr. Hardas stated that he did not make any formal

complaint inasmuch as the appellant was in Madagascar at the relevant time. He only made a

formal complaint in August 2005 when he found out that the appellant had returned to Mauritius.

Following this complaint, the appellant was convened at a meeting in the course of

which Mr. Hardas voiced out his grievance and the appellant was asked for his explanations.

Subsequently four charges were proferred against him in relation to his dealings with Messrs

Hardas and he was summoned before a Disciplinary Committee which found him guilty on all

the charges. Subsequent to the findings of the Disciplinary Committee, the respondent

company took the view that the appellant’s act constituted a gross misconduct on his part and

summarily terminated his employment.

In her judgment the Magistrate of the Industrial Court found that three of the four

charges that the appellant was made to answer before the Disciplinary Committee namely

charges 2, 3 and 4, had not been established.

As regards charge 1, the Magistrate made the following findings:

“1. Hardas intended to do an extension of his sheds;

2. Extension works of this nature are done free by Shell, the defendant;
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3. The plaintiff got Hardas to believe that the defendant would be charging an
excessive price for the works to be done and that he [Barbe] could have the
works done by one Latona for cheaper;

4. Hardas, thereupon, paid the plaintiff to have the work done at his own costs;
and

5. It is when Miss Bunwaree visited him [Hardas] during the absence of Barbe
that she discovered the whole plot and disclosed it both to Hardas and the
defendant.”

The Magistrate found that in the circumstances the respondent had no choice, in good

faith than to take a serious view of the appellant’s conduct. She further found that the act of

misconduct under charge 1, on its own, justified the summary dismissal of the appellant

inasmuch as the appellant’s conduct had caused “the bond of trust so necessary in the

employee/employer relationship, to sever”. She concluded that the respondent had established

that the appellant’s dismissal was fully justified in the circumstances.

The appellant has appealed against the said judgment on five grounds.

Grounds 1 and 5 both deal with the time lapse between the time that the Hardas matter

came to light and the disciplinary action initiated by the respondent against the appellant. They

read as follows:

Ground 1 –

“Because it was manifestly wrong and unreasonable on the part of the Learned
Magistrate to conclude that the Appellant was called before a Disciplinary
Committee within reasonable time.”
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Ground 5 –

“Because on a proper direction as to the case of the Appellant coupled with the
evidence adduced, the Learned Magistrate ought to have found and misdirected
herself in not so deciding, that the dismissal was unfair and unjustified being
given that:

The Respondent did not timely confront the Appellant with his alleged
misdeed despite having had several opportunities to do the same”

Under these grounds counsel submitted that the respondent had failed to act within a

reasonable time in tackling the Hardas complaint. Counsel pointed out that the respondent

called the appellant for explanations at a meeting held on 7 September 2005 and subsequently

convened him before a Disciplinary Committee in October 2005 in respect of a complaint which

Mr. Hardas had made to Miss Bunwaree and Mr. Lionet in 2003, i.e. some thirty months earlier.

According to counsel the respondent had failed to take timely action and confront the appellant

with the allegation made against him although it had had opportunities to do so. As a result of

the lengthy period taken by the respondent to initiate action in relation to the complaint which

formed the basis of the appellant’s dismissal, counsel contended that such dismissal was unfair

and unjustified.

The issue of delay in convening the Disciplinary Committee was raised before the

Magistrate who rejected same. She found that the respondent had acted reasonably in that it

had convened the Disciplinary Committee within a reasonable time as from the moment that the

formal complaint was made on 7 September 2005. She stated that the respondent could not be

blamed for having taken a most reasonable stand in not acting upon mere verbal allegations on

the part of Mr. Hardas.

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We agree with the Magistrate’s decision. The evidence revealed that Mr. Hardas had

reported the matter to Miss Bunwaree and Mr. Lionet in 2003; he however did not make any

formal complaint although Mr. Lionet had advised him to do so. Mr. Lionet explained that he

was not prepared to act on mere verbal allegations and initiate action against one of his

colleagues and he waited for a formal complaint by Mr. Hardas. Mr. Hardas on his part stated

that since the appellant was working abroad at the relevant time, he waited for the appellant to

resume his work at the respondent company in August 2005 to make a formal complaint.

Following the complaint the respondent convened a meeting between all the parties on

7 September 2005; this was followed by the setting up of the Disciplinary Committee on 4

October 2005 and the hearing on 10 October and 21 October 2005.

In the circumstances it cannot be said that the employer had failed to act within a

reasonable time. We agree with the Magistrate’s finding that the respondent adopted a most

reasonable stand when it decided to wait for a formal complaint to be lodged against the

appellant before initiating any action. At any rate at the time that the complaint was made in

2003, the appellant was not working with the respondent company in Mauritius but had secured

employment on a three-year contract in Madagascar. Before deciding upon which course of

action to adopt, it was incumbent upon the respondent to seek the appellant’s explanations in

the matter. Indeed Section 32(2)(a) of the Labour Act which was the applicable law, reads as

follows:

“32. Unjustified termination of agreement

(2) (a) No employer shall dismiss a worker unless he has afforded the worker an
opportunity to answer any charges made against him and any dismissal made in
contravention of this paragraph shall be deemed to be an unjustified dismissal.”
(Emphasis added)
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In the circumstances it was reasonable for the respondent to wait for the appellant who

had secured employment abroad to return to Mauritius so as to apprise him of the allegation

made against him and afford him an opportunity to answer same. The following observations,

hereunder reproduced and made in the case of Bata Shoes (Mauritius) Ltd. v. Mohassee

[1975 MR 146] although they referred to the then existing law namely, The Termination of

Contracts Ordinance 1963, are relevant –

“… What the employer must be aware of is the, employee's misconduct, that is to

say, not merely of acts or omissions and circumstances that may constitute
misconduct but of acts or omissions and circumstances that would allow an
employer, upon a reasonable view, to reach the conclusion that the employee
has been guilty of that type of gross misconduct which alone entitles him under
the law to dismiss his employee summarily. The legal obligation for him to show
good faith imposes upon him the duty to make certain that he is choosing the
right course and one possibility of doing so is suggested by the law itself [section
7(1)] which provides that an opportunity should be given to the worker to
exculpate himself…” (Emphasis added)

Incidentally Section 38(2)(a)(ii) of The Employment Rights Act 2008 makes a similar

provision as Section 32 of the now repealed Act, in the following terms:

“38(2) No employer shall terminate a worker’s agreement -

(a) for reasons related to the worker’s misconduct, unless –

(i) …….

(ii) the worker has been afforded an opportunity to answer any charge
made against him in relation to his misconduct”
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We agree with the Magistrate that in the circumstances the respondent cannot be taxed

with inordinate delay in initiating action against the appellant and grounds 1 and 5 accordingly

fail.

Grounds 3 and 4 were argued together. They are to the following effect:

Ground 3 –

“Because after having concluded that:

(a) there is no substance in charge 2;

(b) charges 3 and 4 had not been established;

(c) under charge 1, that the Respondent “had no choice in good faith
than to take a serious view of such conduct of the [Appellant]”;

The Learned Magistrate fell into obvious error in holding that summary
dismissal was “fully justified” inasmuch as there was ultimately no finding
of gross misconduct.”

Ground 4 –

“Because in any case on the evidence adduced, the Respondent had not
established on a balance of probabilities that the Appellant had committed
acts of gross misconduct, and to find otherwise would have been
manifestly wrong.”

Both these grounds are to the effect that the Magistrate erred in concluding that the

summary dismissal of the appellant was fully justified in the circumstances inasmuch as she did

not make any finding of gross misconduct against the appellant and in fact the evidence did not

establish any act of gross misconduct on the part of the appellant.

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Under these grounds counsel submitted that initially there were four charges against the

appellant. The Magistrate had in her judgment stated that there was no substance in the

second charge and further found that charges 3 and 4 had not been established. In so far as

the first charge is concerned, the Magistrate wrote that the respondent “had no choice, in good

faith, than to take a serious view of such a conduct” on the part of the appellant. Counsel

argued that the Magistrate did not make any finding of gross misconduct against the appellant in

the judgment and indeed the evidence failed to establish any such act of gross misconduct.

We do not agree with these submissions. The Magistrate found that charge 1 before the

Disciplinary Committee which was to the effect that the appellant had “accepted money from

Mr. Hardas in respect of a work which you (the appellant) knew was carried out by Shell at no

cost for the client”, had been established by the evidence adduced before her. In that respect

the Magistrate made the following finding, namely that “the evidence clearly establishes that the

plaintiff got a client of the defendant to believe that it would charge an excessive price for the

works to be done; that he could have the works done by a private contractor for cheaper and he

got the client to pay him for the works which in effect would have been done by the defendant

for free”.

Although the Magistrate did not specifically state that the appellant’s act amounted to a

gross misconduct, the tenor of the judgment and her findings leave no doubt that she had in fact

concluded that the appellant had been guilty of gross misconduct. Indeed this is borne out by

the following extract from the judgment: “The misconduct of the plaintiff (now appellant) cannot

be viewed lightly and indeed, charge 1 on its own does justify the summary dismissal of the

plaintiff (now appellant)”. At the end of the judgment she also wrote that the respondent had
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discharged its burden and shown that the appellant’s dismissal was, in good faith, fully justified

in the circumstances. She proceeded to purely and simply dismiss the plaint thus showing that

she had considered the matter as being one of gross misconduct not warranting any award of

severance allowance.

We take note of the following definition of gross misconduct (faute grave) in Dalloz -

Contrat de Travail à Durée Indéterminée (Rupture - Licenciement pour motif personnel:

conditions) Janvier 2014 at Note 352:

La faute grave «résulte d’un fait ou d’un ensemble de faits imputables au salarié
qui constitue une violation des obligations découlant du contrat de travail ou des
relations de travail d’une importance telle qu’elle rend impossible le maintien du
salarié dans l’entreprise pendant la durée du préavis».

We further find the following pertinent reference to a “comportement malhonnête”

amounting to a “faute grave” on the part of the employee and justifying a summary dismissal, in

Dalloz (supra) at Note 440, Note 446 –

“440. Le comportement malhonnête du salarié justifie son licenciement pour

faute grave ou pour faute lourde lorsque l’employeur peut établir l’existence
d’une intention de nuire. Pour faire l’objet d’un licenciement, il n’est pas
nécessaire que les faits reprochés au salarié constituent une infraction pénale.
Une violation des obligations réglementaires peut ainsi justifier un licenciement
pour faute grave. A titre d’exemple, repose sur une telle faute le licenciement
d’un médecin psychiatre, affecté dans une maison d’arrêt, qui se faisait remettre
des denrées alimentaires par les détenus auxquels il prodiguait ses soins (Cass.
soc. 25 juin 2002, Bull. civ, V, no. 212).» (Emphasis added)

«446. L’indélicatesse reprochée au salarié peut également être constituée par

l’attribution indue d’un complément de rémunération. Tel est le cas lorsque le
salarié conserve à son profit des encaissements qu’il aurait dû effectuer au nom
et pour le compte de son employeur (Cass. soc. 8 mai 1961, Bull. civ. V, no
490).» (Emphasis added)
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In the circumstances of the present case, the facts as found proved by the Magistrate

established a “comportement malhonnête” amounting to gross misconduct justifying the

employer to terminate the appellant’s employment summarily.

Grounds 3 and 4 accordingly fail.

Ground 2 reads as follows:

“Because the Learned Magistrate erred in assimilating a breach of trust to a

gross misconduct warranting summary dismissal when in law, justification for the
termination of a contract of employment, entails payment of severance allowance
at normal rate.”

In the course of his argument under this ground, counsel referred to the following extract

from the judgment:

“The defendant cannot reasonably be expected to be prepared to keep the

plaintiff, who whilst being in a position of trust, has proved to be most
untrustworthy”

On the basis of the above, counsel submitted that the Magistrate had made a finding to

the effect that there was a breach of trust between the employer and employee, and that such

breach of trust, justified the employer’s decision to dismiss the appellant.

Counsel accordingly submitted, on the authority of Bundhoo v. The Mauritius

Breweries Ltd. [1981 MR 157] that, whilst a breach of trust entitles the employer to dismiss the

employee, this is however subject to the payment of severance allowance at the normal rate.
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According to counsel in the circumstances, the Magistrate ought to have made an award of

severance allowance at the normal rate.

We agree that breach of trust can in itself be a cause for dismissal as is made apparent

from the following extract of Dalloz (supra), Note 434 –

“En attachant ses services à un employeur, le salarié s’engage à avoir un

comportement loyal et honnête. Le manquement aux obligations qui découlent
de cet engagement peut constituer une cause réelle et sérieuse de
licenciement. »

However in the present case, breach of trust between employer and employee was not

the cause of the appellant’s dismissal.

Indeed the tenor of the judgment clearly reveals that the Magistrate did not proceed on

the premise that the breach of trust between the employer and the employee as disclosed by

the evidence, had formed the basis of the employer’s decision to dismiss the employee. The

Magistrate’s aforementioned comments when read in the context of the judgment, leave no

doubt that she had found that the appellant had been dismissed on account of gross misconduct

on his part. Indeed the respondent’s case against the appellant, both before the Disciplinary

Committee and before the trial court, had been one for gross misconduct, not for breach of trust.

The Magistrate came to the conclusion that as a result of the appellant’s gross misconduct, the

bond of trust which is essential in an employer/employee relationship was severed. This is

made apparent from the following extract of the judgment –

“The misconduct of the plaintiff cannot be viewed lightly and indeed, charge 1 on
its own does justify the summary dismissal of the plaintiff because the conduct of
the plaintiff caused the bond of trust, so necessary in the employee-employer
relationship, to sever.” (Emphasis added)
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We agree with the Magistrate’s finding that the evidence had established a gross

misconduct on the part of the appellant and that his summary dismissal was warranted in the

circumstances. As such the question of severance allowance at the normal rate does not arise.

Ground 2 also fails.

All the grounds of appeal having failed we dismiss the appeal. With costs.

K. P. Matadeen
Acting Chief Justice

R. Mungly-Gulbul
Judge
16 May 2013

Judgment delivered by Hon. R. Mungly-Gulbul, Judge

FOR APPELLANT: Mr. P. Doger De Speville, SC

Mr. Attorney J. Gujadhur

FOR RESPONDENT: Mr. M. Sauzier, SC

Ms. Attorney S. Jeerakun