(a) State the material facts of the case, explaining the reasons for the appeal against the

judgment of the Industrial Court.

The present appeal case is in relation to a judgment delivered on 25 February 2022 by

the Industrial Court which was entered by the Respondent in the present matter (the
then, Plaintiff) against the Appellant (the then, Defendant) who was the employer of the
Respondent. Such case was entered on the basis that the Respondent’s employment
was constructively terminated. Respondent invoked constructive dismissal inasmuch as
the Respondent alleged the Appellant for having unilaterally modified the conditions of
his employment agreement. On the balance of probabilities, the trial Court found that the
Appellant had amended the employment contract of the Respondent which led
Respondent considering himself as being constructively dismissed. The Appellant was
therefore ordered to pay to the Respondent a sum of Rs 763,801.71/- made up of
Respondent’s one month salary in lieu and instead of notice, severance allowance the
fact that Respondent has been working with the Appellant since the year 1999 and the
pro-rated end of year bonus. The Appellant, being aggrieved by the findings of the trial
Court lodged the present appeal on the basis that it has not unilaterally modified the
employment contract of the Respondent by taking back the car (which is denied by the
Appellant) which the Appellant had given to the Respondent for work purposes and/or by
depriving the Respondent of the “prime de responsabilité” without his consent.
Furthermore, the Appellant grounded its appeal on other grounds whereby it is the
contention of the Appellant that Intrafarm Ltd, being an interested party, should have
been a party to the proceedings; that the trial Court has wrongly assessed the case by
making a distinction between the case of Central Water Authority v D Soobrah [1999]
SCJ 256 and the present case, which the Appellant believed to be similar, that the
findings of the Magistrate was not supported by evidence and/or was not sufficiently
justified bur rather perverse inasmuch as the car given to the Respondent was a “voiture
de function” and the “prime de responsabilité” was given to the Respondent monthly
which could be withdrawn subject to the Respondent not performing additional duties.
The Appellant further averred that if there had been any alleged amendment, it was in
respect of the working conditions of the Respondent and not the essential provision of
the contract of employment of the Respondent.

(b) What is the meaning of “constructive dismissal” as described in the judgment?

The Employment Relations Tribunal being an awarding body in respect of cases
regarding labour disputes highlighted that “A constructive dismissal by an employer
occurs where an employee is entitled to put an end to his contract of employment by
reason of his employer’s conduct. Although the employee terminates his employment, it
is the employer’s conduct which constitutes the breach of contract” (Muslim Abdul v
Mahatma Gandhi Institute [ERT/ RN 126/18]). In the present case, the judge, before
reaching his decision has relied upon different judgments in relation to cases of
constructive dismissal whereby the reasoning behind all such cases cited in the present
case rests upon the fact that if an employer makes any modification to any provision of a
contract of employment, which provision is considered as being essential to the contract,
such modification will tantamount to the unilateral modification of the contract of
employment if the employee has not given his approval to such an amendment. The
unilateral modification of the contract of employment implies that the employer does not
intend to be bound by the provisions of the contract and thereby being in fundamental
breach of the contract of employment. If such is the case, then the employee can
consider himself as being constructively dismissed if he considers that the breach was
sufficiently material to put an end to the contractual obligation with the employer, that is
the employee can no longer work for the employer. In addition, the present judgment
also highlights that any decision that affects the salary of the employee is serious and
the judiciary has to assess such case judiciously the more so that the decrease in the
salary of an employee is sufficient ground for the employee to invoke constructive
dismissal if such decrease is not validly justified by the employer. Therefore, it can be
concluded from the present judgment that any unilateral modification of the contract of
employer of an employee which changes the essential provisions of the contract will not
be considered as mere change in the working conditions of an employee but rather a
fundamental breach on behalf of the employer which will entitle the employee to
consider himself as having been constructively dismissed. In the present case, the
Respondent considers himself as being constructively dismissed pursuant to the
Appellant’s failure to accede to his requests for having the company car back (which the
Appellant had taken from him) and being paid back the “prime de responsabilité” as was
agreed by the parties for additional responsibilities whilst he was working as both the
Technical Manager for the Appellant and Farm Manager at Intrafarm, a company related
 to the Appellant; thereby the Appellant unilaterally modifying the contract of employment
of the Respondent.

(c) Discuss the various elements the judge considered to show that there are substantial
reasons to prove “constructive dismissal.”

The judge considered various elements to show that there are substantial reasons to
prove “constructive dismissal”. The Appellant relied upon 7 grounds of appeal to contest
the decision of the trial Court, however on the day of the hearing of this present appeal,
the Appellant did not press on ground 7. The judge therefore had 6 grounds of appeal at
hand, whereby all the six grounds failed. Each ground was assessed and rebutted as
follows (of note that grounds 4, 5 and 6 were dealt with together): -

In respect of ground one, whereby the Appellant averred that an employer is entitled to
amend the working conditions of its employee to the extent that no essential terms of the
contract be changed, the Judge upheld the decision of the trial Court to the effect that
the Appellant had indeed “aggrave de façon notable ses conditions de travail” as laid
down in the judgment of A. J. Maurel Construction Ltee v Forget H. R. N [2008 SCJ
164]. In addition, though not expressly, but impliedly, the trial Court distinguished
between the present appeal case to the case of Central Water Authority v D. Soobrah
[1999 SCJ 256]. Further, by quoting an extract of the judgment of A. J. Maurel
Construction Ltee v Forget H. R. N, the trial Court confirmed the applicability of the
judgment to the present case that Appellant’s decision of withdrawing the company car
and the “prime de responsabilité” from the Respondent amounted to the unilateral
modification of these two conditions which are essential to the contract of employment.

As for ground 2, the Appellant contended that the trial Court had not taken all the issues
at hand and did not gave sufficient consideration to the facts of the case, the Judge was
wrong in concluding that the withdrawal of the “voiture de function” from the Respondent
was a fundamental breach capable of ending the contractual relationship of the
Appellant and Respondent; the Respondent could no longer continue working for the
Appellant. The Judge, by referring to the case of Periag v International Beverages Ltd
[1983 MR 108] agreed with the decision of the trial court to the effect that the changes
made to the contract of employment of the Respondent were not simple changes being
made to his working conditions, that on a balance of probabilities, the Appellant has
effected material changes to the essential terms of contract of employment of the
Respondent, which resulted in the Respondent considering himself as being
constructively dismissed. In support of the analysis, the Judge further cited the case of
Preetumsing Jugoo v Microwise Computer Mart Ltd [2004 SCJ 69] in relation to an
employee being subject to constructive dismissal where his employer has committed a
fundamental breach of the contract of employment that rendered working with the
employer impossible or that caused a negative impact on the mental and physical health
of the employee. The Judge found this case relatable to the present matter. The
“voiture de function” was being used by the Respondent for work purposes and also for
personal use. The judge highlighted that the Appellant decided to return the car to the
Respondent after the Respondent expressed that he had been constructively dismissed,
which the judge found to be satisfying the test as applied in Wadham Stinger
Commercials (London) Ltd (supra). Owing to the serious breach and intolerable conduct
of the Appellant, the Respondent could not reasonably continue working for it; therefore
ground 2 failed.

Under ground 3, the Appellant submitted that the trial Court was wrong when it
distinguished between the present issues at hand and the case of Soobra as Appellant
is of the view that there are similarities between both cases regarding the withdrawal of
the company car. The Judge found that there was no merit in ground 3 as in Soobra, the
company car was given to the employee as a fringe benefit and therefore not being an
essential condition of the employee’s contract of employment. Also, in Soobra, the
employee had to wait for the completion of the disciplinary proceedings before any
decision could be taken about giving him back the company car. In the present case,
Appellant neither suspended the Respondent nor was there any disciplinary proceedings
against him and the voiture de function was an essential condition of his employment
contract with the Appellant.

Under grounds 4, 5 and 6, the Appellant submitted that the trial Court did not consider
that the “prime de responsabilité” was being given to the Respondent on a monthly
basis, that is such prime was temporary and not permanent, that the Appellant was
entitled not to give to the Respondent if the Respondent has not performed any
additional duties and therefore, the trial Court was wrong in concluding that the
Respondent was entitled to consider himself as being constructively dismissed. The
judge confirmed the findings of the trial Court that the Appellant, by withdrawing the
company car and the “prime de responsabilité” from the Respondent, had acted in the
fundamental breach of its obligations by unilaterally modifying the contract of
employment that it had with the Respondent. The Judge further relied upon the case of
A. J. Maurel Construction Ltee in relation to the “prime de responsabilité” whereby it was
stated that if an employer takes a decision and such decision affects the pay packet of
an employee, then the matter is so serious that it must be subject to strict judicial
scrutiny owing to such modification. The Judge referred to the case of The New
Mauritius Hotels Group v Benoit & New Mauritius Hotels v Others [1982 MR 109] to refer
to what is included and what is not included in the salarium of an employee whereby
salarium consists also of “accessories”. It was further highlighted that where the terms of
a contract is not clear regarding what is included and what is excluded from an
employee’s salarium, the courts interpret such term in favour of the employee against
the employer. The judge highlighted that as per the evidences that were adduced in
court, the Respondent had been benefitting of the “prime de responsabilité” on a monthly
basis. The said “prime de responsabilité” therefore formed part of the salarium of the
Respondent which could not have been withdrawn from the Respondent without the
Appellant having discussed same with him; this applies for the voiture de function as
well, which was equally an essential condition of the contract of employment of the
Respondent. Therefore, the grounds 4, 5 and 6 were bound to fail.

The appeal was accordingly dismissed with costs against the Appellant subject to the
failure of all the grounds of appeal that were submitted by the Appellant. The
Respondent was right in considering himself as having been constructively dismissed.