Rosebelle v Remoto (CA03/2023) [2024] SCSC 100 (20 March 2024)

Introduction

[1]      This is an appeal from the decision of the Employment Tribunal dated 7^th February 2023 in a miscellaneous application filed by the Respondent on 28^th January 2022 to be paid an accommodation and food allowance pending the determination of the main proceedings for unfair dismissal in ET/25/21 Maria Remoto v Rosebelle Pty Ltd.

 

[2]     The Employment Tribunal (hereinafter referred to as the “Tribunal”) awarded the Respondent a sum of SCR220,000/- with interest at 4% and costs of which –

 

1. SCR88,000/- represents an accommodation allowance for the period 6^th May 2021            till 28^th February, 2023; and
2. SCR132,000/- represents food allowance for the period 6^th May 2021 till 28^th February, 2023.

 

[3]      The Tribunal also ordered the Appellant to pay the Respondent a sum of SR10,000/- monthly as food and accommodation allowance from March 2023 until the final determination of the proceedings or until all payment of benefits are made whichever is earlier.

 

[4]        Aggrieved by the Tribunal’s decision, the Appellant filed notice of appeal in the registry of the Supreme Court on 21^st February 2023.

 

[5]        By Memorandum of Appeal filed on 11^th August 2023, the Appellant challenged the Tribunal’s decision on 4 grounds reproduced in verbatim below –

 

“GROUND 1.

The learned Employment Tribunal erred in law and on the facts for having awarded the Respondent the sum of SCR 220,000/- with interest and costs, as being a claim for accommodation allowance and food allowance, which claims were not justified on the basis of the evidence before the Tribunal.

 

GROUND 2.

The learned Employment Tribunal erred in law and on the facts for having awarded the Respondent the sum of SCR220,000/- with interest and costs, as being a claim for accommodation allowance and food allowance, in that the basis of the sum awarded is arbitrary and rest on no justification and proof of evidence before the Tribunal.

 

GROUND 3.

The learned Employment Tribunal erred in law and on the facts for having failed to give due considerations to the admissions of the Respondent to Exhibit R1, tendered by the Appellant, which evidence the Employment Tribunal gave no considerations, at all, in coming to its findings, in respect of the award made to the Respondent.

 

GROUND 4.

The award made by the Tribunal in the sum of SCR220,000 with interest and costs, is gross and excessive and rests on no reasonable justifications and/or on the basis of evidence before the Tribunal.”

 

[6]        The Appellant then filed an Amended Memorandum of Appeal on 18^th September 2023 with leave of the court and no objections from the Respondent. The Amended Memorandum of Appeal added the following ground 5, to the four grounds already reproduced under paragraph [3] above – 

 

“GROUND 5

The learned Employment Tribunal erred in law and on the facts in directing that the Appellant pays for the food and accommodation allowance to the Respondent from March 2023 a sum of SR10,000/- until the final determination of the proceedings or until all payments of benefit are made whichever is earlier, in that the basis of the sum directed, is arbitrary and based on no justification and proof of evidence before the Tribunal.”

 

Background Facts

 

[7]        The brief facts of the case leading to this appeal are as follows.

 

[8]        The Respondent is a citizen of the Philippines who was employed as a farm worker by the Appellant company under a fixed term contract of employment made on 25^th October 2019 for 2 years, until 24^th October 2021. In terms of the employment contract, the Appellant undertook to provide accommodation to the Respondent during the term of her employment. There are no provisions for food allowance under the contract of employment.

 

[9]        On 7^th April, 2021, the Appellant terminated the Respondent’s employment by giving her one month’s notice to become effective on 7^th May 2021. The Respondent’s last day of work on the Appellant’s farm was on 6^th May 2021. From 7^th April 2021 up to 5^th May 2021, the Respondent resided on the Appellant’s workers’ accommodation. On 6^th May 2021, the Respondent left the Appellant’s workers’ accommodation on allegations of fear for her safety and threats levelled against her. She then took refuge at a family friend’s residence who undertook in writing, on 10^th May 2021, to accommodate and provide her with food until employment proceedings are settled and she decides to leave Seychelles.

 

[10]      On 28^th January 2022, the Respondent filed the miscellaneous application in the main proceeding for unfair dismissal claiming an allowance for food and accommodation from the lawful date of termination until her case is disposed of.

 

[11]      The Appellant opposed the application in their reply dated 22^nd February 2022, and after hearing the evidence, the Tribunal made the orders referred to under paragraphs [2] and [3] above.

 

The Appeal

 

[12]      The first four grounds of appeal challenge the basis of the award of SCR220,000/- as food and accommodation allowance for the period from 6^th May 2021 until 28^th February 2023. The fifth ground of appeal challenges the basis of the award of SCR10,000/- monthly for food and accommodation from March 2023 until the final determination of proceedings or until all payments of benefits are made.

Appellant’s Submissions on Grounds of Appeal

 

[13]      At the hearing, Counsel for the Appellant submitted on grounds 1, 2, 3 and 4 of the appeal together and argued ground 5 separately.

 

[14]      In relation to grounds 1, 2, 3 and 4 of the appeal, Counsel submitted in essence that the award of the Tribunal was unreasonable. First, there is no evidential basis for the award. The Respondent had not produced any receipts nor any other form of evidence as to the costs of food purchased by her and from which the Tribunal could have calculated the food allowance as awarded. Counsel submitted that the case of Wells v. Beau Vallon Properties as relied upon by the Tribunal dictates a judicious interpretation of the employer’s liability to provide food and shelter to a former employee during grievance proceedings in order not to unjustly enrich an employee at the expense of its former employer. Counsel further submitted that Paragraph 7 of Part IIA of Schedule 2 to the Employment Act calls upon the Tribunal to consider all evidence before it. Thus, in not considering the Respondent’s admission and Exhibit R1, the Tribunal’s computation of the award was flawed.

 

[15]     It was also submitted on behalf of the Appellant that following the case of Marguerite v Robert (2001), the Respondent has a duty to mitigate her loss. However, it was not shown to the Court how the cited case was relevant to the present appeal.

 

[16]      In relation to ground 5, it was submitted that there is no evidential basis and justification for the award of SCR10, 000 monthly from March 2023 for food and accommodation. The award is arbitrary.

Respondent’s submissions on Grounds of Appeal

[17]      Counsel for the Respondent submitted that the appeal rests on 2 issues. Firstly, whether the Tribunal was entitled in law to award the Respondent (then Applicant) an allowance for food and shelter. Secondly, whether the award made by the Tribunal was reasonable.

 

[18]      On the first issue, counsel submitted that under Clause 7 Part II A of Schedule 2 to the Employment Act it is compulsory for the employer to provide food and shelter to a non-Seychellois employee during the period of grievance procedure and for such period until benefits are paid to the worker. Counsel also submitted that there is no discretion on the part of the Tribunal not to award such allowances once the grievance procedure has been initiated. In the same way, the Employment Act does not stipulate where such food and shelter should be provided.

 

[19]      On the second issue, Counsel submitted that the award made by the Tribunal was based on the cost of living and is reasonable in all circumstances.

 

Law and Analysis

 

[20]      Clauses 7, 8 and 9 of Part IIA of Schedule I to the Employment Act provide as follows:

“Part II A Special Provisions relating to non-Seychellois workers –

….

7. An employer of a non-Seychellois worker shall continue to provide such worker with food and shelter while the grievance of the worker is being dealt with until the competent officer makes the determination.”

8.Upon the determination of the competent officer, the employer may, subject to paragraph (9), cease to provide food and shelter to the worker whether an appeal against the determination is lodged by the worker or not.

9. Where -

(a) the mediator decides that the employer must pay employment benefits to the worker, the employer shall be liable to provide food and shelter to the worker until the worker is paid such benefits;

(b) Where an appeal is lodged by the employer, the employer shall continue to provide food and shelter until the determination of the appeal”

(Emphasis added)

 

[21]      In the case of Laurence Wells v. Beau-Vallon Properties Limited CA7/2010, Dodin J stated the following on the obligation of employers of non-Seychellois workers to provide food and shelter under clause 7 and 9 of Part II A of the Employment Act –

 

“It is not a forgone conclusion that an expatriate employee must be entitled to food and shelter at the employer’s expense. To determine the extent of entitlement it was correct for the Tribunal to consider the provisions of the employee’s contract of employment. In the case of the Appellant, he was entitled to shelter at the employer’s expense but he was only entitled to duty meals. In other words, when he was not on duty he was expected to live on his own means. Clause 7 and 9 of the Part II A of the Employment Act also make provisions for the provision of food and shelter to an expatriate employee during the period of grievance procedure and for such period until benefits are paid to that worker.

 

These provisions must nevertheless be interpreted judiciously so as not to unjustly enrich an employee at the expense of an employer whilst giving an employee the opportunity to pursue and contest proceedings in respect of his employment. It follows therefore that an employee who was entitled shelter for the duration of employment should not be deprived of that shelter until the end of the contract or employment or until the conclusion of the grievance proceedings in the event of dispute. It was therefore necessary for the Tribunal to make an order compelling the Respondent to ensure the provision of shelter to the Appellant until the final determination of the proceedings or until all payments of benefit are made whichever is the latest.

 

As regards the provision of food and basic necessities, as soon as the Appellant ceases to receive a salary which would have allowed him to meet his alimentary and hygienic needs and it is established that the grievance procedure has been invoked, Clause 7 and 9 of Part IIA of the Employment Act would become applicable and the Respondent must make available reasonable provisions to meet the basic needs to the Appellant. The Tribunal would nevertheless have had the discretion to order that such cost be ducted from the award of payment of arrears of salary if such award is then made.”

(Emphasis added)

 

[22]      Having considered the above, I find merit in the submission of Counsel for the Respondent that the obligation created under clause 7 (supra) is compulsory upon employers of non-Seychellois workers until proceedings are determined before the Tribunal. Clause 7 ensures that a non-Seychellois worker is not deprived of food and shelter during proceedings concerning his employment if he remains in Seychelles during this time. At the same time, I note from the words of Dodin, J in Wells (supra) that Clause 7 should not to be used as a means to enable a former non-Seychellois worker to make a profit at the expense of the former employer.

[23]      The Tribunal has the jurisdiction to award food and shelter allowance to a former non-Seychellois worker whose former employer has fallen foul of Clause 7. For the purposes of the present appeal, what must be determined is whether in the circumstances of the Respondent’s case the award made by the Tribunal was justified?

Award of SCR220, 000/- for food and accommodation from 6^th May 2021 to February 2023

 

[24]      The Appellant challenges the award on the grounds of not being supported by evidence from the Respondent as to the expenses actually incurred by her for food and accommodation and of being excessive and disproportionate. The Appellant also challenges the proprietary of the award in view of the written undertaking by the Respondent’s friend dated 10^th May 2021 to provide her with food and shelter until the end of employment proceedings in Seychelles.

[25]      I note that the Respondent claimed food allowance of SCR400/- per day and an accommodation allowance of SCR6000/- per month from her former employer.

 

[26]      I also note from exhibit R1 - the written undertaking of Respondent’s friend – as reproduced below, that the Respondent moved to a family friend’s residence at Beau Vallon since 6^th May 2021 -

 

“Date: 10 May 2021

To whom it may concern

This is to confirm that Maria Christina Remoto is staying at my house in Beau Vallon since around 6:30pm on Thursday 6^th may 2021. She is occupying one extra bedroom in my house for the moment without any issue.

I guarantee that she will be fine in the house where I am staying in Beau Vallon with my family and there will no issue with regard to her food until she settled the ongoing court case and decide to leave Seychelles.

For any clarification, please contact me directly on 2719886.

Sincerely Yours

Nelson (sgn. 10.05.2021)

Nelson Nosil

…..”

[27]    The Respondent also gave evidence that she moved out of the worker’s accommodation because she feared for her safety and in view of threats levelled against her. Respondent admitted in cross examination before the Tribunal that she worked until the last day of her notice and then left the accommodation provided by the Appellant herein. She however maintained that the letter R1 was issued for police and immigration purposes.

 

[28]    The Tribunal made the following findings on the issue of food and shelter –

 

“28) The Tribunal considers the issue of food and shelter are respondent’s responsibility and just by plainly showing that the respondent provided the applicant accommodation is not enough, the atmosphere and the situation for the employees/applicant to live at the said accommodation without fear or any undue influence is also paramount more so when there is an ongoing dispute/grievance between the parties. Further as per clause 8 of the contract of the applicant, she was eligible for accommodation, hence the respondent was bound to provide one. With respect to food nothing was stated in the contract but clause 7 and 9 of Part II A of the Employment Act also make provisions for food and shelter to an expatriate employee during the period of grievance procedure for such period until benefits are paid to the worker.

29) These provisions are beneficial and are to be interpreted to benefit the employees but must nevertheless be interpreted judiciously so as not to unjustly enrich an employee at the expense of an employer whilst giving an employee opportunity to pursue and contest proceedings in respect of his employment. Therefore, it follows that an employee who is entitled to shelter for the duration of employment should not be deprived of such shelter until the end of the contract of employment or until the conclusion of the grievance proceedings in the event of dispute.

 

30) As regards the provision of food and basic necessities, as soon as the employee/applicant ceases to receive a salary and it is established that the grievance procedure has been invoked, clauses 7 and 9 of Part II A of the Employment Act would become applicable and the respondent must make available reasonable provisions to meet the basic needs of the employee/applicant.

 

31) Hence this court after considering the evidence on record there is nothing in evidence as to the costs of food established to the satisfaction of the Tribunal. However, the Tribunal cannot invoke or overlook to leave employee/applicant without any means of sustenance when the law expressly provides that such should be provided. In such circumstances I award for the food based on the cost of living whilst also considering that the employee/applicant would have to be adequately self-reliant as she is an expatriate with no other means of support. Considering the above cited case of Wells v Beau-Vallon where the Supreme Court ordered the appellant a sum of SCR200 per day is reasonable to meet the daily needs, until awards made in this case are paid. With respect to accommodation too there is nothing in evidence as to the costs of accommodation established to the satisfaction of the Tribunal. I take judicial notice that one cannot get a bedsitter for anything less than in the range of SCR5000-7000 per month. Given that the applicant stayed with her uncle for the reasons enumerated above and that the accommodation both at her uncle’s place and her employer’s accommodation was a shared one, the tribunal would have to take that into consideration. Even though the applicant stayed at her uncle’s place, the Tribunal cannot presume or go by the notion that such accommodation was free and there is likelihood of payments to be made by the applicant to her uncle for her accommodation given to her till date. Hence the tribunal would like to grant sum of SCR4000 per month which it finds reasonable to meet the accommodation needs, until all awards made in this case are paid.”

            (Emphasis added)

[29]      The Tribunal’s finding was based on the compulsory nature of the Appellant’s obligation under clause 7 (supra) as interpreted in the case of Wells (supra). The Tribunal did find that the Respondent had not established the costs actually incurred by her for food and shelter. Nevertheless, it was satisfied that in the circumstances where the employer’s accommodation was no longer conducive in view of the turn of events made out in the Respondent’s evidence, which it found to be credible, the Respondent’s right to accommodation should still be safeguarded.  The Tribunal awarded the Respondent a sum of SCR4000 per month for accommodation which is less than the SCR6000 claimed. Tribunal’s award was made on the basis of shared accommodation as provided to the Respondent by the Appellant and at her friend’s place. The Tribunal awarded the Respondent a food allowance of SCR200 per day for food following the case of Wells (supra) based on the cost of living. The award of SCR200 per day is less than sum of SCR400 claimed.

 

[30]          However, the Tribunal did not give any weight to the letter of undertaking dated 10^th May from the Respondent’s friend and that it was only on 28^th January 2022 that the Respondent applied to the Tribunal for an allowance for food and shelter. I note from the letter R1 that the arrangement for food and shelter was undertaken “for the moment” only until settlement of court case in Seychelles.

 

[31]          The Tribunal was correct in awarding the Respondent an allowance for food and shelter but it was wrong to award the same from 6^th May 2021 in view of the letter written on behalf of the Respondent that she would not require food and shelter from the said date. The award should have been computed from the time of filing of the claim before the Tribunal, that is from 28^th January 2022.In absence of receipts and in view of the legal obligation of the Appellant, the Tribunal was correct to award food and shelter based on the cost of living. Thus, the Tribunal neither acted unreasonably or arbitrarily in awarding an allowance for food and shelter calculated on the cost of living.

 

[32]          Grounds 1, 2, 3 and 4 of the appeal succeeds in part only. The decision of the Tribunal is accordingly varied, to the extent that the allowance for food and shelter should be computed from the time of filing of the miscellaneous application on 28th January 2022. The case is therefore remitted to the Tribunal for computation of the award as from 28^th January 2022.

 

                 Award of SCR10,000/- per month from March 2023 until end of proceedings or payment of benefits whichever is earlier

 

[33]          It is clear from Clauses 7 and 9 of Part IIA of Schedule 1 to the Employment Act, that the obligation for the Appellant to provide food and shelter to the Respondent subsists until the end of proceedings or payment of employment benefits if such is decided.

 

[34]          Having already found that the Tribunal did not err in law and on the facts in awarding food and shelter allowance to the Respondent at the cost of living and that in doing so it did not act unreasonably and arbitrarily, Ground 5 of this appeal necessarily fails and the award of the Tribunal is maintained.

Order

1. Grounds 1, 2, 3 and 4 of the appeal succeeds in part only. The decision of the Tribunal is accordingly varied, to the extent that allowance for food and shelter should be computed from the time of filing of the miscellaneous application on 28th January 2022.

 

2. The case is therefore remitted back to the Tribunal for computation of the award for food and shelter as from as from 28^th January 2022.

 

3. Ground 5 of the appeal fails and the award of the tribunal is maintained.

 

Signed, dated and delivered at Ile Du Port, Mahe this 20th day of March 2024.

 

 

      _______________

1. Madeleine, J