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Ministry of Labour, Industrial Relations, Employment and Training

Court Case


 

 Content Editor

 
Industrial Court Judgements from cases conducted by the Ministry 
 
 
LABOUR CASES                                      
 
SUMMARY OF CASE                                                                 
Nicolas Ah Fat Vs      Ferme Marine de Mahebourg   The defendant terminated the plaintiff’s employment without giving him any reason and denied being indebted to the latter in any sum whatsoever. It justified its stand by arguing that it was only complying with clause 1.2 of the contract of employment which stipulated that the agreement may be terminated by either party giving to the other not less than 3 months written notice. The Court found that severance allowance was payable since (1) the plaintiff was employed in virtue of a contract of indeterminate duration (2) his employment was terminated at the initiative of the employer (3) no reason was given to the plaintiff for the termination of his employment....( click here for full text )
R. Alberdy Vs M.Rujeedawa The defendant made an application for a new trial following a judgment in default delivered against it. The reasons put forward in the application were (1) the applicant was not aware that there was any matter pending before a court of law since the Bangladeshi worker who accepted service at the registered office failed to communicate the documents to the management (2) the applicant has a good and bona fide defence i.e the worker never retired voluntarily but instead abandoned his work in spite of the fact that he was asked to return to his work. Both grounds were set aside and the judgment was maintained as the Court found that (1) there was good and proper service since the plaint was served on an employee of the applicant company at its registered office in accordance with S(323) of the Companies Act (2) there could not be any case of abandonment of work since the law gives the option to a worker to decide when to “retire voluntarily” after reaching the age of 60....( click here for full text )
Allyman Abedine Vs La Chartreuse Tea Manufacturing ltd

 

Following a plea in limine litis raised by the defendant, the plaintiff’s claim was set aside as the Court found that the plaintiff was employed under a contract for services as there was no “lien de subordination et control” between the parties....( click here for full text )
Chandramudy Neeressen Vs Li Wan Po Co Ltd

 

Following a complaint to the police by the defendant, the plaintiff was prosecuted on a charge of larceny by more than two individuals and was later on acquitted. In spite of same, the Industrial Court found on a balance of probabilities that the summary dismissal of the worker was justified in the circumstances. The plaintiff’s claim was therefore dismissed with costs....( click here for full text )
De La Haye Vs Air Mauritius Ltd The Court found that the successive contracts of employment of the plaintiff did not turn into one of indeterminate duration as the end of contract gratuity paid at the end of each contract showed the unambiguous common intention of the parties to have distinct autonomous contracts. The Court also held that unlike France, Mauritian law does not preclude termination of a contract of determinate duration on economic grounds...( click here for full text )
KEERUN JHAREE Vs CONTAINER LIFT LTD Counsel for the defendant moved to amend its plea by substituting its defence of “abandonment of work” by “breach of contract”. The motion was not allowed by the Court as same would unfairly prejudice the plaintiff, the more so that the defendant has failed to set up the defence of having given a written notice on the employee requiring to resume work as provided under S 46(7) of the ERA 2008....( click here for full text )
Marie Mirella Dorine Laprovidence Vs Domaine du chasseur ltee Whilst admitting that the plaintiffs were its employees, the defendant has pleaded that at the time their employment were terminated, the company was placed in receivership and was under the exclusive control of the receiver manager. The defendant opposed the termination of their employment and after the end of the receivership, it offered to the plaintiffs to resume employment but they refused. In the absence of evidence, the Court was not prepared to say that the receiver manager has bound the defendant company in that case and the plaint was dismissed with costs....( click here for full text )
J. Luximon Vs National Transport Corporation The Court found that the plaintiff  was entitled to a refund of his travelling expenses by bus from his place of residence to his pick up point and back (even if the distance is less than 3 kms), irrespective of whether the plaintiff chooses to go on foot or by bus....( click here for full text )
Moneeram Vs Rose Belle SE Board A worker reckoning 12 months continuous service or more and who works for only 4 hours twice weekly i.e 8 hours/week falls within the definition of a part-time worker and is thus entitled to payment of severance allowance (pro-rata basis) in case of termination of his employment....( click here for full text )

 

Rajendra Mooken Vs Top Notch Ltd Though the Court concluded that the disciplinary committee rightly found the worker guilty of gross misconduct, it however found that the latter was not afforded a fair hearing. The director of the company acted as judge and party by sitting as a member of the disciplinary committee though the worker was accused of using filthy words against him...( click here for full text )
Rehza Moortoojakhan Vs Tropic Knits ltd Plaintiff’s counsel objected to the defendant calling the chairperson of the disciplinary hearing to depose on its behalf on the ground that the chairperson did not give evidence before the disciplinary hearing. The objection was set aside as the Court considered that it would be an absurdity to say that such a person cannot be called as he heard evidence and was a chairperson of the disciplinary hearing, the more so as the purpose was for establishing that certain documents were effectively produced before the DC...( click here for full text )
S.Paniapen Vs Municipal Council of Vacoas-Phoenix Counsel for the respondent argued that the applicant has failed to cause notice to be served on the respondent prior to the case being lodged before the Industrial Court in breach of S43(2) of the Local Government Act 1989 (LGA) and that the application has been made well outside the prescribed delay as required under S43(1) of the LGA. The Court concluded that the scope of S43(1) of the LGA is limited to actions, civil and criminal, which arise in relation to the performance or non-performance of duties laid down in the LGA only. Similarly S43(2) of the LGA provides that one month’s notice should be given to such civil suit, action or proceeding contemplated under S43(1) of the LGA. The plea in limine litis was set aside as the Court found that the applicant’s  claim is a private one under a contract of employment between the applicant and the respondent and not one in furtherance of any of the respondent’s public duty as a local authority under the LGA...( click here for full text )
PLIRO Vs Chavi Security Guards Ltd One of the directors of the accused company contended in Court that he had already resigned as such and was therefore not authorized to represent the company. Arguments were heard and the Court found that there was no evidence that the company has accepted his resignation though he sent a resignation letter to the Registrar of companies. He was thus still a director of the company and the Court held that in virtue of S(44) of the IGCA, the director was not only entitled to appear on behalf of the company but also to enter a plea on its behalf....( click here for full text )
PLIRO Vs H.H.C. How Hong The accused was found guilty for having willfully and unlawfully verbally abused a worker in the course of her work in breach of S54(1)(c)(2) of the ERA....( click here for full text )
PLIRO Vs MBC The accused charged as follows (1) failing to comply with the requirements of a written notice issued by the Permanent Secretary, Ministry of Labour, Industrial Relations & Employment (2) refusing to answer faithfully any question put by the PS, MLIRE (3) refusing to produce a document required by the PS, MLIRE in breach of S62 of the ERA. The accused pleaded not guilty and averred that S62 of the ERA was repugnant to S3 & S5 of the Constitution and that the information was bad for duplicity and uncertainty. The Court did not retain any of the defence put forward by the accused and found that the MBC had flouted the authority which is represented by the PS, MLIRE and that it failed to collaborate with the PS, MLIRE in its attempt to nip the problem in the bud. The accused was found guilty as charged under all 3 counts...( click here for full text )
Gerard Rawoteea Vs Avipro Ltd Whilst not every misconduct will justify a dismissal, each case must be decided on its own merits and each misconduct must be viewed in the specific context in which it occurred and in the light of the nature of the relationship existing between the employer and the employee, The Court found that it was open to the defendant to  find that the doings of the plaintiff amounted to “ fautes graves et porteraient atteinte a l’element de confiance qui doit exister entre votre employeur et vous”, warranting summary dismissal....( click here for full text )
L.G.Residu Vs G.M.Hussen Raja A plaint was entered on behalf of the plaintiff to claim wages for 17 days work. The defendant gave an oral plea to deny the plaintiff’s averments and stated that the latter who was unknown to him never worked in his restaurant. The Court found that the plaintiff’s version to be believable and convincing and that the worker could not by sheer luck happen to decide that he was employed by the defendant and that he invented a story just to annoy the latter. The case for the plaintiff was thus found proved on a balance of probabilities....( click here for full text )
SLIRO Vs A.PRAKASH BADAL The accused was prosecuted for having expressed the intention to cause harm to a worker in the course of his work in breach of S54(1)(d) and S54(2) of the ERA 2008. The prosecution proved its case beyond reasonable doubt against the accused who was found guilty as charged....( click here for full text )

 

M.D.Topige Vs Food Canners Ltd When the plaintiff joined employment, he was residing within the 3 kms radius of his place of work and was thus not entitled to refund of travelling expenses. When he however moved to Pailles ( > 3 kms), the defendant refused to refund his travelling expenses on the ground that the plaintiff was recruited only because he resided near the factory. The Court found that by failing to take action when being informed of the change in situation, conditions and circumstances, the defendant tacitly agreed to same. It could not thus alter the the plaintiff’s conditions of work so as to make them less favourable that the minimum provided by law. It also could not infringe the worker’s constitutional right to freedom of movement....( click here for full text )
L.B. Veerasamy Vs L.B. Veerasamy The plaintiff entered a plaint to claim payment for cardex commission on the sale of “kwepe cards”. Defendant’s counsel put in a plea in limine litis to the effect that the plaintiff’s claim was time barred by virtue of Article 2279 of the Civil Code. Plaintiff’s counsel argued that the cardex commission did not form part of the remuneration of the plaintiff as it did not fulfill the criteria of fixite and was as such not subject to the prescription in Article 2279 of the Civil Code. The Court held that fixite is no longer a rigid concept. It suffices that the methodology of calculating the commission is fixed even if the amount varies to fulfill the criteria of fixite. The Court found that the criterion of both periodicite and fixite were present in the computation of the cardex commission which was thus considered as remuneration. The claim was therefore found to be time barred and was dismissed accordingly....( click here for full text )
Zoobair and Osman Properties Vs N.D.Parsooramen Following a Judgment in default given in the worker’s favour, the company applied for a new trial on the grounds of (1) error (2) new evidence (3) interest of justice. The Court found that the grounds put forward in the application did not constitute “ very solid grounds” which would justify that the respondent be deprived of a judgment obtained in a court of justice. The application for new trial was therefore refused and the judgment maintained...( click here for full text )
Issory N Vs Georges Mahadeo Industries Ltd
Case where the Court found that the letter of resignation written by plaintiff was not voluntary and by forcing her to write the said letter, Defendant did in fact constructively dismiss her. Severance allowance at punitive rate awarded(Rs 74,628). Defendant appealed against the judgment which was upheld by the Supreme Court. ....( click here for full text )
 
Pradip Kumar Pursun Vs JMR CO Ltd
Case of termination of employment where defendant contended that plaintiff was not its employee as the nature of contract between them was one of services.Plaintiff was recruited as Human Resource Manager on a verbal contract of employment but for administrative convenience Defendant styled his post as Business Development, Marketing and Human Resource & Training Consultant. The Court found that an employer/employee relationship existed between plaintiff and defendant and following termination of employment the latter was ordered to pay notice for unjustified termination of employment and wages due. On appeal the Supreme Court upheld the decision of the lower Court. 
 
Christophe K Jean Louis Vs Repro Plus Ltd
In this case the Court held that Plaintiff was first sanctioned through written warnings and the same accusations were formally brought against him shortly in a disciplinary committee and he was dismissed on those grounds. He was thus sanctioned twice for the same act. SA at punitive rate awarded(Rs 384, 886). ....( click here for full text ) 
 
Hervey Stenio Christophe Vs Asruff Ollee
Case of termination of employment where Defendant pleaded abandonment of work. This defence was held to be invalid as no written notice was sent to plaintiff as required by S 32(4) of the Labour Act. SA at punitive rate awarded(Rs 535, 260). Defendant appealed against the judgment but same was set aside by the Supreme Court. ....( click here for full text )
 
Muslim Rasmally Vs Mac' Allan Ltee
Case of termination of employment where Plaintiff received letter of dismissal outside statutory delay of 7 days following a hearing. Severance allowance at punitive rate awarded(Rs 459, 523). The Court also quoted various case laws to support its finding that the effective date of dismissal is when an employee is notified of his dismisal and not on the date when the letter is posted. Defendant has appealed against the judgment. ....( click here for full text ) 
 
Govindan L V and ano Vs Maydon Fashion Ltd
This is a case where Defendant unilaterally changed the working hours of plaintiffs. The Court held that it was within the Defendant's discretion to change the plaintiffs' working hours as an employer has the inherent power of administration. In this case, however, it was not only the the change in working hours by themselves that are alleged to be the constitutive elements of the dismissal but a combination of factors relating to the way these changes were brought about. The plaintiffs were informed of the change in hours at very short notice, they were told that they could resign if they were not happy with the change, they were not given a chance to voice out their difficulties and ,more importantly, they also denied access to the work premises on two days. Severance allowance at punitive rate awarded to both plaintiffs.(Rs 602, 255 and Rs 830, 415 respectively)Defendant has appealed. ....( click here for full text ) 
 
Youneed Aumeeruddy Vs Frankipile Mtius International Ltd
Case where plaintiff was dismissed following a hearing where he was accused of imparting information to Health and Safety Officers of a nature to cause severe prejudice .The complaints made by plaintiff regarding health hazards were established by the Inspectors who came to visit the site and recommendations were even sent to Deft to that effect.The Court also noted that the letter of dismissal contained an element which was not part of the initial charge and Defendant could not later rely on it to justify its decicion to terminate plaintiff"s employment. Severance allowance at punitive rate awarded(Rs 122, 592). Defendant has appealed against the judgment. ....( click here for full text ) 
 
Dr(Mrs) Unuth Vs Ste Congregation de Bon et Perpetuel Secours(Clinique Ferriere) The facts that were in dispute in this case revolved round the question as to whether there was a "lien de subordination" of the respondent towards the appellant as her employer, especially, in view of the conditions of service existing between the two parties. According to the appellant's Counsel, the respondent was not employed by the appellant. In support of that argument it was submitted that the respondent was working as an independent professional for a fee payable in respect of each different patient, over and above the sum of Rs 1000 paid to her per night for the work performed by her in her professional capacity, the fee she received being half of the amount paid by the outpatient to the Clinique, and she could also see her own patients at the Clinique for a fee out of which she paid a certain percentage to the appellant. In that context, it was urged that there was a "contrat d'entreprise" as opposed to "louage de services". The Court found that the nature of contract between Plaintiff and Defendant was one of services. Defendant ordered to pay notice and SA for unjustified termination of employment . The Defendant appealed but the Supreme Court upheld the decision of the lower Court. ....( click here for full text )
 
HEALTH AND SAFETY - CASES
 
PROSECUTION ACCUSED SUMMARY OF CASE
OSHI Ireko Design & Construction Ltd
Case where an employee fell from the roof of a mock up room at a height of 5 metres while he was laying plastic sheeting and sustained injuries to his feet.  Court found that the accused indeed failed to ensure the safety of its employee by failing to provide scaffold, fencing and guardrail around the construction. Accused was fined Rs 25,000 and Rs 500.as cost. ....( click here for full text )
 
OSHI Wing Tai Chong Company Limited
Case where accused is charged of having failed to comply with an ORDER of the Industrial Court issued to obtain a Fire Certificate. Court found that the company took more than 5 years to comply with the recommendations of the Fire Department and it willfully failed to comply with the Order imposed by the Industrial Court. The Company in fact took 459 days to comply with the Court Order and was fined Rs 45,900. and Rs 500. as cost. ....( click here for full text )
 
OSHI The United Basalt Products Ltd
Case where accused company is charged for having failed to securely fence the dangerous part of a block making machine (a vibrating table, a feedbox arm and a hammer) by not providing interlocking device to the gates of the said machine and the employee could gain access to the dangerous part when door was open.  This resulted in the employee sustaining injuries and he subsequently passed away. The Court held that the accident was reasonably foreseeable and the fact that the interlocking was provided after the accident, it could not have been impractical to do so. The accused was fined Rs 50,000. and Rs 200.as cost. ....( click here for full text ).
 
OSHI The Municipal Council of Quatre Bornes
Case where it was revealed that "Cernol 969" a cleaning detergeant was taken from the original container from the store for daily use in a plastic bottle labelled "Crystal" and the said bottle was stored in a drawer of a filing cabinet in an office together with other bottles of water.  This bottle of "Cernol 969" was served to an employee as water and he sustained serious throat injury. The accused council failed to ensure the safety and health of its employee by failing to provide a labelled container for keeping   "Cernol 969" and a safe place for storage of the container. The court holds that the accident was foreseeable and the accused council should have provided bottles with labels and a safe storage space for the cleaning  detergeant. The accused was fined Rs 25,000. and Rs 200.as cost.
 
OSHI Panagora Marketing Company Ltd
Case where accused is charged of having failed to ensure the safety and health of its employee. Accused allowed its employee to work in a building owned by Food & Allied Industries Limited where it was operating a cold room. An employee sustained injuries to his neck when the upper part of the panel of a sliding door (up and down) of the cold room fell on his neck and he sustained injuries to his neck. The accused knew that the door was hit by a forklift two months before the accident and the panel came out. The door was fixed again but the hinges need to be changed and this was not done. Court holds that it was forseeable that the panels would come out and injure someone. Accused was fined Rs 10,000. and Rs 200 as cost. ....( click here for full text )
 
OSHI Lam Kam Siang Bros. Ltd
Accused was charged for failing to ensure the safety and health at work of one of its employees. It operates a biscuit making factory and makes use of an oven equipped with several burners. A newly recruited 17 years old employee was required to work alone on the oven.  The employee had to light the burners and to adjust their flame intensity. While he was adjusting the flame intensity of a burner, a backfire occurred, that is fire came backwards along the knob of the burner and disappeared. The employee sustained burns injuries to his face with the heat emitted by the backfire.  The accused was aware that backfire had happened in the past but he had failed to take remedial actions to prevent employees from being affected. It was only after the accident that accused has installed an alarm system on the oven and this system gives indication on which burner a backfire may occur.  Accused has also provided a face shield for use when lighting burners. Court holds that had a risk assessment been carried out, it would have realized in the light of the history of the burner that a proper alarm system was necessary in case of backfire.  Accused was fined Rs 8,000 and Rs200.cost.
 
OSHI Agricultural Marketing Board
The accused Board failed to ensure the safety and health at work of one of its employees. A forklift had encountered a breakdown in the corridor leading to a crate store. As it could not be moved away, repair work was being done to it in the corridor. However the accused had failed to immobilize the forklift, that is, stabilizers were not placed behind the wheels to prevent movement of the vehicle during repair. The accused had also failed to deny access to the corridor where the forklift was being repaired and employees working in the crate store were going to and from the store using the corridor. Suddenly the forklift moved away and hit an employee who was passing in the corridor to go to the store. He sustained injuries to both legs. Court holds that a proper risk assessment should have been carried out before allowing repairs to be done outside the workshop. Accused was fined Rs 25,000 and Rs200.cost
 
OSHI Mauriplage Investment Co Ltd
The accused company was charged for failing to provide a working environment that is safe and without risk to health as a result of which an employee sustained burns injury to his back and thighs when he slipped and fell on a greasy floor. The employee was carrying a fruit dish in the kitchen when he slipped. As he slipped, the fruit dish hit a container of hot oil on a table and the container which was not covered and not tightened overturned and hot oil splashed on the employee. The accused knew the slippery nature of the floor but it was only after the accident that floor mats have been provided to the floor and anti slippery shoes have been provided to the employees to reduce the risk of slip. The accused was fined Rs 25,000 and Rs 200. as cost. ....( click here for full text )
 
OSHI
Froid des Mascareignes Ltd.(FDM)
(Accused No 1)
 
Thon des Mascareignes Ltd.(TDM)
(Accused No 2)
 
Accused No 1 (FDM) was charged for failing to securely fence the dangerous part of a machine that is the roller and belt of a fish conveyor. This resulted in an employee of Accused No 2, who was doing fish sorting at the premises of Accused No1 sustaining injury to his left hand when his hand came in contact with the dangerous part.
 Accused No 2 was charged for failing to ensure the safety and health of its employee. It did not ensure that the machine on which its employee was working at the premises of accused No1 was safe.
Each accused was fined Rs25,000 and Rs 200.cost....( click here for full text )
 
OSHI Joonas Marketing Ltd      Accused was charged for failing to ensure the safety and health at work of one of its employees. The latter got injured in his left arm when a metal sheet slipped from his hand and cut his arm during transportation of metal sheets which are oily and have sharp edges. He was not provided with elbow length leather gloves but instead with woolen gloves. The court holds that the accused failed to realize that woolen gloves were not enough to have been given. After the accident elbow length leather gloves to concerned workers. Accused was fined Rs 10,111 and Rs Rs200.cost. ....( click here for full text )
 

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