The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 19 of 1998

 

Rameshwar Purmasing Appellant

v.

The National Transport Corporation Respondent

 

FROM

 

THE SUPREME COURT OF MAURITIUS

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 9th December 1998

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Present at the hearing:-

Lord Slynn of Hadley

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hope of Craighead

Lord Millett

  ·[Delivered by Lord Hope of Craighead]

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1. This is an appeal by leave of the Supreme Court of Mauritius from a decision of the Supreme Court (Narayen and Peeroo JJ.) dismissing an appeal against a judgment of a Magistrate of the Industrial Court.  In her judgment the Magistrate (Mrs. N. Matadeen) had dismissed the appellant's claim that he had been wrongfully dismissed by the respondents from their employment and for wages in lieu of notice, balance of wages due and severance allowance at six times the normal rate.  The appellant was represented at the hearing before their Lordships by his counsel, Mr. D. Hurnam, to whom their Lordships are indebted for his concise and helpful argument.  The respondents were not represented.

 

2. The appellant had been in the continuous employment of the respondents, the National Transport Corporation, as a mechanic helper for five years when he was dismissed. He claimed that he had been summarily and wrongfully dismissed by them, and that he was entitled to an indemnity in lieu of notice and to a severance allowance at the punitive rate.  The respondents maintained that they were entitled to treat the appellant's contract with them as terminated, on the ground that he was in breach of his contract because he had been absent from work without good and sufficient cause for more than two consecutive working days.  Their decision to dismiss him on this ground was taken under reference to section 30(4)(a) of the Labour Act 1975.

 

3. That section provides:-

 

"30  Termination of agreement

 

(1)   Subject to any express provision of the agreement and to subsections (2) and (3), every agreement shall terminate on the last day of the period agreed upon or on the completion of the specified piece of work.

 

(2)   A party to an agreement, other than an agreement entered into for a specified piece of work, shall, on the termination of the agreement, be deemed to have entered into a fresh agreement upon the same terms and conditions as the previous agreement unless notice has been given by either party to terminate the agreement in accordance with section 31.

 

(3)   Where a worker is ill-treated by his employer, he may claim that the agreement has been terminated by the employer.

 

(4)   An agreement shall be broken -

 

(a)  by the worker, where he is absent from work, exclusive of any day on which the employer is not bound to provide work, without good and sufficient cause for more than 2 consecutive working days;

 

(b)   by the employer, where he fails to pay the worker the remuneration due under the agreement."

4. These are the facts which led to the dismissal, as found by the Magistrate.  The appellant was working to a roster system at the respondents' premises.  He was scheduled to work there on Friday, 22nd April 1994 and from Monday, 25th to Friday, 29th April.  On Saturday and Sunday, 23rd and 24th April and on Saturday, 30th April he was off duty.  He did not report for work on 22nd April, and he was absent from work again from Monday, 25th to Friday, 29th April.  On 28th April 1994 the respondents' personnel manager wrote to the appellant pointing out that he had been absent from work from 22nd to 27th April without good and sufficient cause, and that in terms of section 30(4)(a) of the Labour Act 1975 he was deemed to have broken his contract of employment with them.  He offered the appellant an opportunity to provide his written explanation as to why disciplinary action should not be taken against him within 48 hours of receipt of that letter.  On Sunday, 1st May the appellant turned up for work, clocked in his attendance and performed his duties as scheduled.  He turned up for work again on Monday, 2nd May, when he was spoken to by the time keeper, Mr. Lulith who had not seen the appellant the previous day as he was off duty on Sundays.  He requested an explanation from the appellant for his absences.  The appellant told him that he had been ill.  He said that he had posted a medical certificate to him, but Mr. Lulith told him that he had not received it.  He asked the appellant to fetch documents to support his explanation.  Later that day, as the appellant was unable to produce any documentary evidence of his illness, he was suspended.  He was requested to appear before a disciplinary committee on 19th May 1994, but he did not attend the hearing.  He sent a note that day saying that he was attending hospital that morning.  The committee held that the appellant had broken his contract under section 30(4) of the Labour Act.  On 23rd May 1994, in the light of the finding by the disciplinary committee, he was dismissed from his employment by the respondents' general manager.         

 

5. The Magistrate was of the opinion that the case raised two issues.  The respondents' case was that the appellant committed a breach of contract when he failed to notify them of the reason why he had been absent.  The appellant's case was that, as he had been allowed to work on 1st May, the respondents had waived this breach of contract.  But he also claimed that he had forwarded a medical certificate to his employers to explain that his absences were due to the fact that he was ill.  He said that on 27 April he had sent a medical certificate to cover the period from 25th to 27th April through his cousin, whom he had asked to drop the certificate off in the respondents' letter box.  For the period 28th and 29th April he said that he had asked his cousin to send a medical certificate to the respondents on 30th April by registered post.

 

6. The Magistrate said that she did not believe this evidence.  She said that it was contradictory and unreliable.  She observed that the appellant's cousin was not called to give evidence, and that no copies of the certificates had been produced.  As for the issue of waiver, she said that the evidence showed that the appellant had resumed work on a day when the office was closed and the time keeper was absent, and that he was immediately suspended when, having been asked for an explanation next morning, he was unable to produce any documentary evidence.  She added that she was inclined to believe that the appellant was in bad faith when he resumed work on the Sunday, knowing that there would be no request for an explanation from the office that day.  She held that, as the appellant was in breach of his contract of employment, the respondents were justified in dismissing him.

 

7. The Supreme Court held that the Magistrate's finding that the appellant was in breach of contract could not be faulted.  The appellant had produced a certificate of posting which was dated 30th April to support his evidence that he had asked for a medical certificate to be sent to the appellants by registered post that day.  But it was noted that he was already outside the statutory delay by that date, and that he had not furnished a satisfactory explanation for his absence.  The Supreme Court also upheld the decision of the Magistrate on the issue of waiver.  They noted that in their letter of 28th April, which they said the appellant must in all probability have received on 30th April before he resumed work, the respondents had told him that they were giving him a period of grace of 48 hours from the receipt of the notice to provide an explanation for his absences and that they had suspended him immediately when he failed to do so.

 

8. Mr. Hurnam recognised very properly that it was not open to their Lordships to depart from any findings of fact on which the Supreme Court had concurred with the findings which had been made by the Magistrate.  He submitted however that it was open to their Lordships to take a different view from the Supreme Court on the main issues in the case.  He said that the Magistrate had decided the case against the appellant on the issue of breach of contract on a point which had not been raised in the pleadings, namely whether the respondents were justified in dismissing him.  He referred to section 32 of the Labour Act, which deals with the question of unjustified termination.  He said that that section provided a ground for termination by the employer which was mutually exclusive of that provided by section 30(4)(a) of the Act where the contract was broken by the worker.  He also submitted that there were no concurrent findings on the issue of waiver, as the grounds on which the Supreme Court had decided this issue were not the same as those which had formed the basis for the decision of the Magistrate.          

 

9. On the pleading point, Mr. Hurnam's argument was that the issue was whether the contract of employment was broken by the appellant by being absent from work without good and sufficient cause for more than two consecutive days as provided for by section 30(4) of the Labour Act. That was the ground which had been averred by the respondents in their letter of 23rd May 1994 by which his employment had been terminated.  It was also the ground averred in their plea, paragraph 3 of which was in these terms:-

 

"The defendant denies paragraph 3 of the plaint [in which the appellant had averred that he was summarily and wrongfully dismissed] and avers that the plaintiff had by his own conduct, free will and action broken the contract of employment in that he had failed to notify the defendant about his illness and had failed to forward the prescribed medical certificate in support of his absence and/or illness."

 

10. He submitted that the issue of justified dismissal was a quite different issue, as it was relevant only where questions were raised under section 32 of the Act on the ground that a dismissal by the employer was unjustified.  It had not been raised in the pleadings and it had not been canvassed at the trial.  All along the sole issue had been whether the appellant had broken his contract under section 30(4) of the Labour Act by failing to notify the respondents about his illness, and by failing to forward to them the prescribed medical certificate.

 

11. Their Lordships are not persuaded that the Magistrate decided the issue of breach of contract on a ground which had not been raised in the pleadings or in the evidence.  It is clear from the pleadings that the parties joined issue on the question whether the appellant had broken his contract in the circumstances provided for by section 30(4(a) of the Act.  The questions of fact which had to be addressed were whether the appellant had been absent from work for more than two consecutive working days and, if so, whether this was without good and sufficient cause.  There was no dispute as to the first question.  The appellant admitted that he had been absent from work on each of the days when he was found to have been absent by the Magistrate.  The dispute was about the second question, as to whether this was without good and sufficient cause.  The appellant said in his answer to the respondents' demand for particulars that he did not attend work as he had been certified sick and that he had posted medical certificates to them.  The respondents' case was that he failed to notify them of his illness and that he also failed to send them any certificates.

 

12. As their Lordships read the Magistrate's judgment, her findings of fact were directed throughout to the issues raised in the pleadings on which she had heard evidence and on which she had been addressed by counsel.  It is clear from her judgment that her finding was that the respondents had made out their case that the appellant had broken his contract because no good or sufficient cause had been shown for his absences.  Their Lordships do not think that the comment at the end of her judgment that the respondents were "justified" in summarily dismissing the appellant meant any more than that.  They can find no indication from her judgment that she decided the case against him on a ground which had not been raised in the pleadings.  On her findings the respondents were entitled to treat the appellant's contract with them as broken on the ground laid down in section 30(4)(a) of the Act.  This was the ground for termination which they had stated in their letter of dismissal dated 23rd May 1994.  The Magistrate did not refer to section 32 in her judgment.  There is no reason to think that she treated the case as one of dismissal on the ground of misconduct, or that she was under the impression that a question had been raised under section 32 as to whether the respondents' termination of the appellant's employment with them was justified.

 

13. On the question of waiver, their Lordships are satisfied that the Magistrate was right to reject this argument in the light of the facts which were found proved by her and those which were developed in more detail in their judgment by the Supreme Court.  The appellant's case was that the respondents had waived his breach of contract by allowing him to work on Sunday and Monday, 1st and 2nd May.   Waiver depends upon the state of knowledge of the party who is said to have given up or abandoned the right which he asserts and of the party who seeks to rely on it. In W.J. Alan & Co. v. El Nasr Export [1972] 2 QB 189, 213 Lord Denning M.R. formulated the concept in these terms:-

 

"The principle of waiver is simply this: if one party, by his conduct, leads another to believe that the strict rights arising under the contract will not be insisted upon, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on the strict legal rights when it would be inequitable for him to do so."

 

14. Implicit in this formulation of the principle is the point that the first party was aware of the facts which would lead the other party to that belief and that the other party acted in knowledge of those facts.  Applied to this case, this means that the respondents will not be allowed to insist on their right to found on the appellant's breach of contract if, knowing what he was doing, they led him to believe that the rights arising from that breach of contract would not be founded upon.  But the evidence showed that the respondents were not aware that the appellant had turned up for work on the Sunday and that the appellant for his part must have known that this was so.  The office was closed and the time keeper, who was the person responsible for dealing with this matter, was absent from his work on the Sunday as this was a holiday.  It was not until the following day that anyone was in a position on the respondents' behalf to question him in person about his absences.  When it became clear that the appellant was unable to provide a medical certificate he was suspended from his work immediately.

 

15. Mr. Hurnam submitted that the respondents ought not to have permitted the appellant to return to work on the Sunday.  He said that the time keeper should have taken his card out of the rack so that he could not check in for work that day.  But there was no evidence to show that the respondents ought to have anticipated that he would return to work that day.  Furthermore they had already written to him pointing out that he had broken his contract and giving him a period of 48 hours within which to provided them with a satisfactory explanation for his absences.  For all they knew the appellant might have had a perfectly good reason for being absent, and it was plainly right that they should give him an opportunity to explain himself.

 

16. The facts of this case are, as both the Magistrate and the Supreme Court have noted, distinguishable from those in Prosperity Knitwear v. Samachurn (1995) S.C.J. 162.  In that case, after having been absent for more than two consecutive days during the previous week without notifying his employer, the worker was allowed to return to work on the Monday and to work for the whole of that day without any remonstration as to his absence.  In this case the respondents wrote to the appellant stating that he had broken his contract as soon as he had been absent for more than two consecutive days.  This was enough to alert him to the fact that they proposed to treat the contract as broken unless he could explain himself.  Having decided to return to work, he chose to do so on a day when the office was closed and the time keeper was absent.  Nothing that happened on that day can support an argument of waiver, as there is no evidence that the respondents had any reason to expect him to turn up for work that day.  Nor is there any evidence that anyone was present who was in a position to examine the question whether the appellant had been absent from duty without good and sufficient cause. When the time keeper arrived for work the following day he intervened at once, drew the matter to the attention of the personnel department and, when the appellant was unable to come up with the documents which had been requested from him, suspended him.

 

17. For these reasons, which are substantially the same as those set out in the judgment of the Supreme Court, their Lordships will dismiss the appeal.  The appellant must pay his own costs before their Lordships' Board.

 

© CROWN COPYRIGHT as at the date of judgment.