Sheila Bastienne v Island Conservation Society (Appeal 13 of 2021) [2023] SCSC 111 (13 February 2023)

ESPARON J

Introduction

1. This is an Appeal against the decision of the Employment Tribunal in ET 80. 2019 of which the said Tribunal ruled that;

1. The Applicant waving her index finger and making gestures in the face of the Chairperson of ICS, the Applicant showed a lack of Respect towards her supervisor which constituted a serious disciplinary offence.
2. The procedure and requirements as laid down in section 53 were adequately followed by the Respondent.
3. The termination to be lawful in the circumstances.

2. The Appellant Appealed and the grounds of Appeal are as follows;

1. The Employment Tribunal erred in law and on the facts, for having concluded that the reasons for the termination itself of the employment of the Appellant, was justified in Law, on the basis of the evidence before the trial Court.

2. The Employment Tribunal erred in law and on the facts in concluding that the procedure and requirement, as laid down in section 53 of the Employment Act, were adequately followed by the Respondent and as such the Tribunal finds that the termination of the Appellant by the Respondent, was justified.
3. The Employment Tribunal erred in law and on the facts, for having wrongly applied the law in its determination that the termination of the Appellant’s employment, by the Respondent, was justified in law.

Submissions of Counsels

3. Counsel for the Appellant submitted to the Court as to ground 1 and ground 2 of Appeal that the procedure to arrive at the decision to terminate the Appellant was unlawful and cannot form the basis of the decision taken by  tribunal in justifying the in law termination. Counsel for the Appellant relied on section 53(3) of the Employment Act  and submitted to the Court that the minutes of the meeting of the  disciplinary committee clearly showed that the Respondent acted in breach of section 53 of the Act since no representation were made by the Appellant or a representative of her own choice but however Miss Murray was allowed to lead evidence and testified as to the Appellants alleged performance and behaviour since May 2018, the Appellant was afforded no opportunity other than her written statement relating to the alleged incident of the 14th  June.
4. The counsel for Appellant further submitted to the Court that the said minutes relied upon by the Respondent and produced as exhibit is flawed as it is was never signed by the Appellant and as such not agreed as being correct by all parties as the Appellants disputes the contents of the said minutes specifically the allegation of gesture of the finger in the face of the chairman.
5. Counsel for the Appellant submitted as to ground 3 that the Respondent’s  decision to terminate her employment was unlawful in law for being contrary to section 57 (4) of the Act and relied on the said section and part II of schedule 2 of the Act since the said provisions of the law imposed the important pre-requisite that the  act of the employee must have caused a serious  prejudice to the employer’s undertaking, before the employer can be satisfied that the same act, amounted to a serious disciplinary offence in law and as such the employer bears the burden of proving such circumstances.
6. Counsel for the Appellant further submitted to the Court that the parties are bound by the contract of employment which they have signed which stipulated not for immediate termination but for a written warning in the event that the act of the employee amounted to a disciplinary offence and that such a measure was ever considered against the Appellant.
7. On the other hand Counsel for the Respondent submitted to the Court that the evidence clearly showed that the Appellant was lawfully terminated for committing a serious disciplinary offence under sub-section (1) part 2 schedule 2 of the employment Act and section 57(4) of the Act.
8. Counsel for the Respondent relied on the evidence of Mr. Skerrett and submitted to the Court that the Employment Tribunal also found that the evidence of Mr. Skerrett and Miss Michelle Murray to the fact that the Appellant waved her middle finger in the face of Mr. Skerrett during a meeting held on the 14th June, 2019 before walking out and that both witnesses which testified before the tribunal were found to be credible and truthful, and that the Appellant had acted inappropriately and out of emotion.
9. Counsel for the Appellant relied on the case of Patrick Bonne and Ors V/S Gilbert Eliza  (2021) SCCA 49, Twomey JA stated;

‘’ that although an Appellate Court can form an independent opinion about proper inferences  of facts to be drawn, it would be slow to reject a finding of fact, especially when the finding could be founded on the credibility of witnesses.’’

10. Counsel for the Respondent hence submitted to the Court that in absence of anything obvious or apparent to show that the Tribunal erred in finding that the Respondent’s witnesses were credible or made an incorrect inference of fact, the Court should not interfere with that determination.
11. Counsel for the Respondent submitted as to ground 2 that the procedure as laid down in section 53 of the Act was followed since following her suspension, the Appellant gave a written statement wherein she denied any wrong doing. According to Counsel for the Respondent the disciplinary panel heard both sides the Appellant and the witnesses for the Respondent and came to a determination.
12. Counsel for the Respondent relied on section 53(1)-(4) of the Employment Act and submitted that the Respondent has complied with the above provisions of the law before terminating the Appellant namely since the Respondent had set up a disciplinary panel to make a determination. Secondly, that the Appellant was informed in writing of the same by way of a letter of suspension dated the 17th June 2019 and thereafter she gave a statement denying the allegations, thus being allowed to put her defence. Thirdly, the disciplinary panel’ s minutes show that it was conducted  in a fair and transparent manner since witnesses for the Respondent was called to give evidence and the Appellant was not called since she had already made a statement denying the allegations.
13. As regards to ground 3 of Appeal ,counsel for the Respondent relied on Part II of schedule 2  of the Employment act and submitted to the Court that Counsel for the Appellant gave a wrong interpretation of the said provision of the law in that he touched only on the 1st part of the law and hence Counsel for the Respondent submitted to the Court that this provision of the law must be read as a whole of which the said provision of the law goes on to set out various offences  which amounts to serious disciplinary offences.
14. Alternatively counsel for the Respondent further submitted to this Court  that in any event  the act of the Appellant by being disrespectful to the Chairman of the board satisfied the pre-requisite that the employee caused serious prejudice to the employer.
15. Counsel for the Respondent also submitted to the Court that with regards to the Contract of employment, that the wording given in the provision of the law gives a discretion to the employer to decide what action to take against the employee and hence in other words the law supersedes that of the contract of employment and that there is no requirement for the employer to give a warning to the employee. The Respondent further submits that the termination of the employee was lawful.

The law

16. This Court hereby reproduces Section 53 of the Employment Act;

1. No disciplinary measure shall be taken against a worker for a disciplinary offence unless there has been an investigation of the alleged offence or where the act or omission constituting the offence is self-evident unless the worker is given the opportunity of explaining the act or omission.
2. Where the disciplinary offence relates to a serious disciplinary offence, the worker shall be informed in writing with a copy to the union, if any of the nature of the offence as soon as possible after it is alleged to have been committed and of the suspension of the worker, where the employer deems suspension to be necessary as a precautionary measure or for investigative purposes.
3. The Employer shall ensure that investigation pursuant to subsection (1) even where it consist in no more than requiring an explanation for a self-evident act or omission, is conducted fairly and that the worker has if the worker so wishes, the assistance of a colleague or representative of the union, if any, and of such witnesses as the worker may wish to call.
4. Where a disciplinary offence is established, the employer shall decide on the disciplinary measure to be taken, and where such measure is termination without notice, shall inform the worker of the same in writing with such a copy to the union if any.
5. A worker aggrieved by a disciplinary measure taken by the employer against the worker may initiate the grievance procedure and under that procedure the burden of proving the disciplinary offence lies on the employer.

17. Schedule 2, part II of the Employment A8ct provides that ‘A worker commits a serious disciplinary offence wherever, without a valid reason, the worker causes serious prejudice to the employer or employer’s undertaking and more particularly, inter alia, where the worker—

1. Fails repeatedly to observe working hours or is absent from work without authorization on 3 or more occasions within a period of 12 months.
2. is absent from work without justification for a whole day on 3 or more occasions within a period of 12 months;
3. fails repeatedly to obey reasonable orders or instructions given by the employer or representative of the employer including orders or instructions relating to the use of care of protective equipment; And
4. fails to keep a secret connected with the work of the worker, the production of goods or the provision of services, where the failure results in serious prejudice to the undertaking or the general interests of the Republic;
5. Wilfully or intentionally damages the property of the undertaking thereby causing a reduction or stoppage of production or serious prejudice to the undertaking;
6. is unable to carry out the duties of the worker due to the effect of alcohol or dangerous drugs or refuses to comply with a requirement of an employer under section 53A;
7. commits any offence involving dishonesty, robbery, breach of trust, deception or other fraudulent practice within the undertaking or during the performance of the work of the worker;
8. in the course of the employment of the worker assaults, or inflicts bodily injury upon a client of the employer or another worker;
1. commits any active or passive bribery or corruption;

10. commits an offence under this Act whereby the worker causes serious prejudice to the employer or employer’s undertaking;

11. does any act, not necessarily related to the work of the worker, which reflects seriously upon the loyalty or integrity of the worker and causes serious prejudice to the employer’s undertaking;

50. shows a lack of respect to, insults or threatens a client of the employer or another worker whether it be a superior, a subordinate or a colleague.

1000.  wilfully, repeatedly and without justification fails to achieve a normal output as fixed in accordance with standards applicable to the worker’s work;

14. Knowingly makes false statements in an application for special leave under the Employment (Coronavirus Special Leave) (Temporary Measures) Regulations, 2020.’

Determination

18. The first ground of Appeal is that The Employment Tribunal erred in law and on the facts, for having concluded that the reasons for the termination itself of the employment of the Appellant, was justified in Law, on the basis of the evidence before the trial Court. It appears that this ground relates to what evidence is before the Court of which two witnesses namely Mr. Adrian Skerrett and Miss Muray testified before the Tribunal as witnesses for the Respondent by stating that the Appellant made certain gestures with her finger to the Chairman of the board and walked out of the room of which the Respondent denied such allegation. This Court agrees with the submission of learned Counsel for the Respondent of which the issue before the Court is one of credibility of witnesses and should be assessed as such.
19. In the case of Young Kong v/s Islam (CA 13 of 2020)  The  Court examined the issue of appeal on facts in the case of Citizens Engagement Platform Seychelles v Bonnelame  (Civil Appeal 28/2019 2020 (28 December 2020) where the Court made reference to decided cases reproduced hereunder;

The England and Wales Court of Appeal in Clydesdale Bank v Duffy [2014] EWCA Civ 1260 stated:

“The Court of Appeal is not here to retry the case. Our job is to review the decision of the trial judge. If he has made an error of law, it is our duty to say so, but reversing a trial judge's findings of fact is a different matter.... persuading an appeal court to reverse a trial judge's findings of fact is a heavy one. Appellate courts have been repeatedly warned by recent cases at the highest level not to interfere with findings of fact by trial judges unless compelled to do so. This applies not only to findings of primary fact but also to the evaluation of those facts and to inferences to be drawn from them”.

The Supreme Court of Canada in Housen v Nikolaisen [2002] 2 SCR 235 further stated:

“The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.”

In the case of McGraddie v McGraddie [2013] UKSC 58 [2013] 1 WLR 2477 Lord Reed quoted Lord Thankerton from the case of Thomas v Thomas 1947 SC (HL) 45; [1947] AC 484:

“Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion. (2) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court."

20. In the case of Letshego Bank of Namibia V/S Bahm( HC)-MD- Lab AAP 11 2021 the Court stated;

‘’ the test for a fair dismissal is therefore twofold and both requirements of substantive and procedural fairness must be met. If an employer fails to satisfy one leg of the test, he fails the test of fairness and the dismissal is liable to be held as an unfair dismissal.

21. Hence based on the above authorities, the court shall not interfere with the findings of the employment tribunal on the credibility of these witnesses since the employment tribunal has seen and heard these witnesses and hence the said tribunal is in a better position than this Court on Appeal to evaluate the evidence and credibility of these witnesses which has testified before the Employment Tribunal.
22. Before this Court decides on whether to interfere with such a finding by the Court, the Respondent has to satisfy this Court of the Second test, that is the test of procedural fairness since if one of the test fails then the termination of the contract of employment of the Appellant would have been unjustified. This Court would hence proceed to deal with the second ground of Appeal which deal with issues of procedural fairness.
23. As regards to the second ground of Appeal namely that the Employment Tribunal erred in law and on the facts in concluding that the procedure and requirement, as laid down in section 53 of the Employment Act, were adequately followed by the Respondent and as such the Tribunal finds that the termination of the Appellant by the Respondent, was justified.  Section 53 (3) of the Employment Act provides that ’the Employer shall ensure that investigation pursuant to subsection (1) even where it consist in no more than requiring an explanation for a self-evident act or omission, is conducted fairly and that the worker has if the worker so wishes, the assistance of a colleague or representative of the union, if any, and of such witnesses as the worker may wish to call.
24. It is clear that the above section of the Employment act imposes an obligation on the Employer to conduct the investigation fairly. In the case of Savoy development Limited V/S Sharifa salum SCA 10 of 2021, Twomey Justice of Appeal stated;

‘’   Further, the submissions of Savoy that disciplinary hearings by an employer cannot be equated with judicial proceedings while holding water to some extent cannot ignore the fact that fairness in investigation hearings as exacted by section 53 of the Act, for tribunal hearings demands the observance of at least the rules of “natural justice.”(See in that respect “Schedule 6 (S 73A): Employment Tribunal)[3]. The handmaid procedural argument is of no assistance in this respect as the issue here is a breach of substantive justice and not mere procedural irregularity.

25. In the case of Batwatala V Madhvan Group, Labour dispute  reference  146 of 2019 ( 2021 UGIC 7), the  industrial Court of Uganda relied of the case of EBiju James V/S Umeme LTD  HCCS 0133/2012 which provides guidelines  of what constitute fair hearing as follows;
    1. 1. Notice of allegations against the Plaintiff was served on him and sufficient time allowed for Plaintiff to prepare a defence.
       2. The notice should set out clearly what is the allegation against the plaintiff and his right at the oral hearing were. Such rights would include the right to respond to the allegation against him orally and /or in writing, the righto be accompanied at the hearing and the right to cross examine  the defendant’s witnesses  or call witnesses of his own.
       3. The Plaintiff should be given a chance to appear and present his case before the impartial committee in charge of the disciplinary issues of the defendant.
26. In the case of Batwala (supra)  the Court held that ‘’it is our finding that the disciplinary proceedings having not complied  with the guidelines as prescribed in the case of Ebiju james (supra) and section 66 of the employment Act, the claimant was unlawfully and unfairly terminated.
27. It is clear from the evidence on record before the disciplinary committee that two witnesses gave evidence for the Respondent but the Appellant did not testify on her behalf nor was she called or present at the hearing, but she gave a statement denying the allegations after that she was informed in writing by a letter of suspension dated the 17th June 2019. Furthermore counsel for the Respondent admitted in Court that both Mr. Adrian Skerrett and Miss Muray was present as board members at the hearing. In fact the report from the disciplinary committee shows that the name of the two said individuals  appear at the bottom of the report of which Mr. Adrian Skerret did not sign the report however miss Muray signed the report which  leaves this Court’s mind further in doubt
28. In view of the above, it is clear that the said disciplinary committee in not calling the Appellant to be present at the disciplinary hearing whereby the employer chose to have one, breached the rules of natural Justice as regards to the Appellant. Had they called the Appellant, the Appellant would have been able to call witnesses on her behalf or cross examine the witnesses for the Respondent whilst being well within her rights if she was desirous to be assisted by another person in accordance with section 53 (3) of the employment Act. This Court finds that since the employer has failed to satisfy this Court of the test of procedural fairness since there was a breach of the rules of natural justice, this Court finds that the termination of the contract of employment of the Appellant by Respondent was unjustified and hence the 2nd ground of Appeal is upheld.
29. In view of this Court’s finding as to the 2nd ground of Appeal that the termination of the Contract of employment of the Appellant was unjustified, this court finds no necessity to make any pronouncement as to the 3rd ground of Appeal nor as to any additional pronouncement as to the 1st ground of Appeal.
30. As a result of the Court’s finding that the termination of the Appellant’s contact of employment was unjustified this Court shall make the following Orders;

1. Ground 2 of Appeal is upheld.
2. This Court shall remit the matter back to the Employment tribunal for the purpose of computation of the Appellant’s employment benefits as a result of her unjustified dismissal.

Signed, dated and delivered at Ile du Port on the 13th February 2023.

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Esparon J