Gregoire's Company Limited v Attorney General & Anor (MC 27 of 2021) [2024] SCSC 146 (21 June 2024)

DODIN J

1. The Petitioner Gregoire’s Company Limited petitioned the Court for the exercise of supervisory jurisdiction pursuant to Rule 2 of the Supreme Court (Supervisory Jurisdiction Over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules.

2. The Petitioner is a company incorporated and registered under the Companies Act 1972 and the proprietor and operator of the hotel resort known as La Digue Island Lodge, situated at Anse Reunion, La Digue hereinafter referred to as “the resort”.

3. The Respondent is and was at all material times, the Government Minister responsible for the portfolio for employment and social affairs and empowered under the Employment Act to hear appeals from a competent officer as provided by the provisions of the Employment Act defined therein.

4. The Petitioner avers that on the 28^th September, 2020, Mr. S. Monnaie, Director General employed by the Employment Department of the Ministry of Employment, Immigration and Civil Status (the “Ministry”), and a competent officer for the purposes of the Act (the “Competent Officer”), wrote to the Petitioner to state that a former employee of the Petitioner, Ms. Brigitte Payet, (the “Complainant”) had filed a grievance against the Petitioner out of time alleging unfair dismissal, ill treatment and unpaid salary (the “letter”).

5. The Petitioner avers that in the letter, the Petitioner was informed that the Competent Officer was of the view that the circumstances surrounding the delay by the Complainant to file the grievance, was not all due to her fault as she had personal and medical issues which resulted in her being confined at home and in hospital. As a result, the Competent Officer was allowing the Complainant to file her grievance outside of the prescribed time limit set out in the Act.

6. On the 5^th October, 2020, a representative of the Petitioner wrote to the Ministry to request a copy of the Complainant’s letter to the Ministry and the evidence used in support of her application to register a grievance out of time for the purposes of its appeal, but the said request was refused by the Ministry.

7. On the 8^th October, 2020, the Petitioner, through its legal counsel, appealed to the Respondent against the decision of the Competent Officer to register the Complainant’s grievance out of time, attaching a covering letter and evidence in support thereof to demonstrate that the Complainant had been disingenuous about her health and inability to file the grievance promptly (the “Appeal”).

8. On the 13^th November, 2020, the Petitioner, once more through its legal counsel, attended a session of the Employment Advisory Board at the offices of the Employment Department, in which the Complainant was present, for the purposes of hearing the Appeal.

9. On the 7^th January, 2021, legal counsel for the Petitioner received a letter from the Respondent dated 4^th January, 2021, wherein he was informed that the Respondent had considered the Appeal and the advice of the Employment Advisory Board, but had come to the conclusion that the circumstances surrounding the delay to register the grievance were not all due to the fault of the Complainant and the decision of the Competent Officer to register the grievance out of time was being maintained (the “Decision”).

10. The Petitioner avers that the Decision by the Respondent is unjustified, irrational, illegal and/or unreasonable and it was reached in a procedurally improper manner. The Petitioner detailed the particulars as follows:

“1. The Decision was procedurally improper in that:

1. It did not state the reasons why the failure to register the grievance out of time was not the fault of the Complainant;

2. It did not disclose the evidence used by the Complainant to justify her application to register a grievance out of time thus denying the Petitioner an opportunity to have all the facts and evidence for the Appeal.

2. The Decision was unreasonable in that it failed to give comprehensive and clear reasoning’s for the outcome reached, simply stating arbitrarily that the ‘circumstances surrounding the delay are not all due to the fault of the Complainant’ without delving into what those circumstances are.

3. The Decision was irrational in that the Petitioner attached clear evidence to the Appeal of the Complainant’s disingenuity about her personal circumstances and health which affected her ability to file the grievance within time, but this was not considered or addressed whatsoever by the Respondent in the Decision or at all.

4. The Petitioner avers that the Petition is made in good faith and that it has sufficient interest in the matter as the Decision has directly affected it, being that it has allowed the Complainant to register a grievance under the Act against the Petitioner and it is seriously aggrieved by it.”

 

11. The Petitioner moved the Court for the following remedies:

1. to grant the Petitioner leave to proceed with this Petition;

2. to direct the Respondent to disclose to the Petitioner all records and documents related and incidental to the Decision;

3. to issue a writ of certiorari quashing the Decision;

4. to make any other order it deems fit and appropriate in all the circumstances of this case; and

5. for costs.

 

12. The Respondent objected to leave to proceed with the Petition. After hearing learned counsel on the issue of leave, leave was granted by a ruling of this Court delivered on the 10^th November, 2022.

13. In it reply on the merits, the Respondent averred that Ms. Brigitte Payet, the Intervener, and complainant at the Ministry, was General Manager of La Digue Island Lodge and an Executive Director of Gregoire’s Company (Pty) Limited lodged a grievance against the Petitioner for unfair dismissal, ill treatment and unpaid salary at the Employment Department, Ministry of Employment, Immigration and Civil Status on the 8^th September 2020.

14. The complainant provided reasons for the delay in lodging the grievance with relevant medical documents. The delay in lodging the grievance was condoned by the Competent Officer being satisfied with the explanation and evidence adduced. The complaint/grievance was registered by the Competent Officer as MED/E/D/2020/166 and the Petitioner was accordingly informed vide letter dated 28^th September 2020 which further informed the Petitioner of its right to appeal against the Decision.

15. The Respondent avers that an Appeal was lodged by the Petitioner before the Minister against the above mentioned Decision numbered as Appeal/2020/18. Notice was issued to the Parties that the said Appeal was to be heard on the 6^th November 2020. In pursuance to Section 65(4) of the Employment Act, the Minister consulted the Employment Advisory Board. The Employment Advisory Board heard both the Petitioner and the Complainant Ms. Brigitte Payet on the issue of lodging the grievance out of time and examined the relevant documents with regards to the issue in dispute and it was ruled that the circumstances surrounding the delay are feasible and are not all due to the fault of the Complainant and hence, advised the Minister to confirm the Decision of the Competent Officer in MED/W/D/2020/166.

16. On the 28^th December 2020, on careful consideration of the Appeal, relevant evidence on record and also taking into consideration the Advice of the Employment Advisory Board the Minister upheld the impugned Decision of the Competent Officer citing the reason that the circumstances of the delay in lodging the grievance were not all due to the fault of the complainant.

17. Thereafter, the Petitioner did not challenge the Decision of the Minister by way of Judicial Review but chose to participate in the Mediation Proceeding in MED/W/D/2020/166/ which concerned the Grievance of illegal/unjustified termination lodged by the Complainant against the Petitioner before the Competent Officer. Both parties participated in the mediation proceeding to bring about a settlement which failed and the Competent Officer issued the Certificate in accordance with Section 61 (1D) of the Employment Act, 2008 as evidence that both parties have undergone the mediation process.

18. On the issuance of such a Certificate by the Competent Officer, an aggrieved party should bring the matter before the Employment Tribunal within 30 days if no agreement has been reached at the mediation. The Petitioner after having its Appeal dismissed by the Appellate Authority namely the Minister, chose not to challenge the Decision of the Minister at first instance but participated in the Mediation Proceeding in MED/W/D/2020/166 before the Competent Officer. When the Mediation to arrive at a settlement failed, the Petitioner instead of bringing the matter before the Tribunal in accordance with Section 61 (1E) of the Employment Act, 2008, filed this instant Judicial Review against the Decision of the Minister.

19. The Respondent avers that there was no unreasonableness as both parties were given equal opportunity to be heard, adduced relevant evidence which were taken into consideration by the Employment Advisory Board and on being satisfied passed its advice to the Minister accordingly as required. That the grounds in the instant petition that documents requested for by the petitioner are redundant and baseless as these documents were adduced by the Intervener before the Employment Advisory Board and were part of the record along with the advice of the Employment Advisory Board before the Minister in the Appeal.

20. The Minister on careful consideration of the appeal, relevant evidence adduced and on the advice of the Employment Advisory Board upheld the Decision of the Competent Authority to condone delay and registered the Grievance. Reason is given in arriving at the impugned Decision that the circumstances surrounding the delay are not all due to the fault of Ms. Payet. Therefore, the impugned decision of the Minister is not unreasonable, unjustified, irrational, arbitrary or illegal nor was the Petitioner denied its right to natural justice or any prejudice caused. The Respondent also acted within its mandate and committed no procedural impropriety. Furthermore, the Petitioner has not shown any concrete demonstration of unreasonableness, on the other hand, the Respondent has given equal opportunity to the both parties of be heard.

21. The Respondent avers that it is trite law that while an Appeal is concerned with the merits of a decision, Judicial Review is concerned with the decision making process. For the reasons stated above, the present Petition is devoid of merits, hence, the Respondents pray that the Court to dismiss the petition for Judicial Review with costs.

22. Learned counsel for the Petitioner and Respondent made extensive submissions in support of their contentions whilst the Intervener opted not to address the court further on the merits. The submissions of learned counsel are reproduced hereunder.

23. Learned counsel for the Petitioner submitted as follows:

“l. The above-named Petitioner, Gregoire's Company Limited, has filed a petition pursuant to the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules (hereinafter the "Rules") seeking an order of writ certiorari quashing the decision of the Minster of Employment and Social Affairs, given on the 4^th January, 2021 (hereinafter the "Decision").

 

2. A brief background of this petition are as follows:

 

a. On the 28^th September, 2020, the Petitioner was informed that a competent officer of the Employment Department of the Ministry of Employment and Social Affairs (hereinafter the "Ministry" or the "Respondent") had decided to allow Ms. Brigitte Payet, the Intervener, to register a grievance (as provided for in the Employment Act) against the Petitioner despite being beyond the required statutory time limit of 14 days. The competent officer was of the opinion that the delay was not attributable to the Intervener as she had personal restraints and was in confinement in hospital and at home due to her health condition.

 

b. On the 5th October, 2020, the Petitioner requested a copy of the medical certificates and letter of complaint of the Intervener for the purposes of appealing the decision of the competent officer but this request was refused by the Ministry.

 

c. On the 8th October, 2020, the Petitioner, through its legal counsel, filed an appeal against the decision of the competent officer on the grounds that the Intervener had been disingenuous about her circumstances. The appeal was heard on the 13th November, 2020.

 

d. On the 7th January, 2021, legal counsel for the Petitioner received a letter from the Ministry dated 4th January, 2020 wherein the appeal was refused on the basis that the delays were not all attributable to the Intervener.

 

e. Being dissatisfied with the manner in which its appeal was dismissed, the Petitioner filed the present petition on the grounds that the Decision was procedurally improper, unreasonable and irrational.

 

GRIEVANCES UNDER THE EMPLOYMENT ACT

 

3. It is submitted that in order to give context to the arguments of the Petitioner, it is apt to summarise the statutory framework surrounding the registration of grievances and appeals against the decisions of a competent officer.

 

4. Schedule 1, Part II, section 2(1) and (3) of the Employment Act states that:

 

"(1) Wherever an employer or worker is empowered by or under this Act to initiate the grievance procedure, the employer or worker may. within 14 dqvs of becoming aware of the event. act or matter giving rise to the grievance, register a grievance with the competent officer furnishing the officer with all the information the officer may require.

 

(3) An employer or worker who fails to register a grievance within the time specified under subparagraph (1) loses the right to do so, but the competent officer, if satisfied that the failure ^{to do so is not attributable to the fault of the employer or worker as the case may be or if the} officer has himself suspended registration under sub-paragraph (2), shall allow registration out of time."

 

5. Additionally, section 65 of the Employment Act provides the right of appeal against a decision of a competent officer:

 

"(1) Subject to subsection (2), wherever an employer or worker is aggrieved by an authority, approval, decision or determination of a competent officer, the employer or the employers' organization on behalf of the employer, the worker or the Union on behalf of the worker, may appeal against it to the Minister.

 

(2) An appeal under subsection (1), other than an appeal against a determination of the competent officer consequent upon initiation of the negotiation or grievance procedure, shall be lodged with the Chief Executive within 14 days or such other period as may be prescribed after the date on which the authority, approval, decision or determination was given."

 

6. Notably, the law does not state how the Minister comes to determine an appeal, or what to take into consideration. Presumably, the law has left it to his or her discretion. Nevertheless, the decision of the Minister is final under the Employment Act and accordingly, it is submitted, akin to a quasi-judicial function as he or she would decide if the competent officer has made the correct determination.

 

PROCEDURAL IMPROPRIETY

 

7. It is the humble submission of the Petitioner that the Decision was procedurally improper on two grounds, namely;

 

a. it did not state the reasons why the failure to register the grievance within the statutory time limit was not the fault of the Intervener; and

 

b. it did not disclose the evidence used by the Intervener to justify her application to register the grievance out of time, thus denying the Petitioner the opportunity to have all the facts and evidence for an appeal.

 

8. In Lotus Holding Company Ltd v Seychelles International Business Authority [2012] SLR 153, it was held that procedural impropriety includes the failure to observe the rules of natural justice or failure to act with procedural fairness (please see also Beau Vallon Properties v The Minister, Minister of Employment and Social Affairs [2022] SCSC 438).

 

Failure to Give Reasons

 

9. The Petitioner submits that it is a core facet of natural justice that any adjudicating authority must give clear and detailed reasons for any decision it makes. In Ex Parte: Jeremie [1995] SLR 78, a case with somewhat similar facts to the present petition, the Supreme Court held that:

 

"it is the rule of natural justice that when one sits on judgment on others, one's decision must be supported by valid reasons. In the absence of any reasons given one is led to the irresistible conclusion that there was no basis for the decision".

 

10. It is to be noted that in Jeremie, no reasons whatsoever were given whilst on the present facts, there was somewhat of an attempt at a reason, but the Petitioner submits that it was not sufficient to be termed a 'reason'. The Respondent did not explain why the Petitioner's appeal was not successful. It only upheld the decision of the competent officer and used the same exact wording, i.e. the delay to file the grievance was not all the fault of the Intervener. No further explanation was given by the Respondent. There was no engagement with the arguments of the Petitioner on appeal. The Minister ought to have at the very least demonstrated that she addressed her mind to the grounds of appeal raised by the Petitioner even if she rejected the appeal. By failing to do so, she has breached the principles of natural justice and did not provide reasons for her decision.

 

11. In R v Civil Service Appeal Board, Ex Parte Cunningham [1991] 4 All ER 310, the Court of Appeal of England and Wales held that even if there was no statutory imperative to provide reasons, nor necessarily a general rule that required administrative tribunals to give reasons, such an obligation could arise as an incident of procedural fairness in appropriate circumstances. Lord Donaldson stated that:

 

"Judged by that standard, the Board should have given outline reasons sufficient to show to what they were directing their mind and thereby indirectly showing not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the Board to the status of a free-wheeling palm tree." [emphasis added]

 

12. Moreover, McCowan LJ also stated as follows:

 

"1 cannot believe that 'procedure' for these purposes ends with final speeches. It would produce a most unsatisfactory situation if it did. To accord with natural justice a tribunal must permit a party to state his case. But how will that avail him if he has no idea whether any attention has been paid by the tribunal to what he said? How could he, in the absence of reasons, know that they had not rejected his submission? How could he formulate a case on the point [or judicial review?" [emphasis added].

 

13. Finally, Legatt LJ concluded:

 

"I have not been much assisted by the articles relied on by [the appellant).but it seems obvious that for the same reason of fairness that an applicant is entitled to know the case he has to meet, so should he be entitled to know the reasons [or an award [or compensation. so that in the event of error he may be equipped to apply to the Court for judicial review. For it is only by judicial review that the Board's award can be challenged." [emphasis added].

 

14. The Petitioner would also submit that the entire dictum of Lord Lane CJ in R v Immigration Appeal Tribunal ex p Khan (Mahmud) [1983] 2 All ER 420, as quoted by Donaldson LJ in Cunningham [supra] at paragraph 319 is worth considering. Per Donaldson LJ, Lord Lane's reasoning is not limited to instances where statute imposes a duty to provide reasons - natural justice and fairness requires as much. This is also stated by Legatt LJ at page 325:

 

"Nor does natural justice or fairness require the giving of reasons for a decision only when an obligation to give them is imposed by statute".

 

15. In Westminster Bank Ltd v Beverley Borough Council & Anor [1968] 2 All ER, the Queen's Bench Division of the High Court had an application for writ certiorari to quash the decision of the Minister to refuse planning permission. Whilst the application was unsuccessful, the Court found that it was important for reasons to be fully and sufficiently stated:

 

"I refer to the source of the obligation only because I think that the obligation to notify the reasons for a decision and, by necessary implication, to notify them fully and sufficiently ... This obligation is of the greatest importance as compliance enables an applicant to place before a court the materials which will or may enable it to determine whether the Minister has acted within his powers. If therefore reasons are not stated or are stated inadequately, it will [allow almost as of course that the applicant has been substantially prejudiced ... "[emphasis added].

 

16. The Petitioner submits that the cases quoted all confirm that procedural fairness requires that reasons be fully sufficient so as to allow the parties to know what has been taken into account by the adjudicating authority and what is the basis for the decision. Needless to say, the Decision by the Respondent failed in all these respects.

 

17. To this day, the Petitioner is unaware how of why the Respondent arrived to the decision that it did. It does not know which of its grounds or arguments of appeal have been considered. The Decision states that the delays were not all attributable to the Intervener. This implies that some of the delays were the fault of the, Intervener. Which of these delays were condoned and which were not is something only the Respondent knows as it failed miserably to annunciate its reasoning in the Decision. Saying that the Intervener was not wholly at fault is not a reason. It is the determination. An arbitrary one at that. Such a failure, it is submitted, is a breach of the principles of procedural fairness and that in itself, it is respectfully submitted, ought to result in the Decision being quashed.

 

18. In Petite Anse Developments Ltd v Competent Officer & Anor [2014] SCCA 46, the Court of Appeal had a similar case before it. In allowing the appeal, the Court held that the failure by the competent officer to give reasons for her decision to register a grievance out of time was reviewable and incorrect. Whilst in this case the decision was maintained by the Minister, the same principles apply, it is submitted.

Refusal to Disclose Evidence

 

19. When one looks at the letter from the competent officer wherein the Intervener was allowed to register her grievance out of time [Exhibit PI], the raison d'etre for the allowance, in essence, is that the Intervener was unable to do so within time because she was suffering from medical problems and was thus 'confined at home and in hospital'. The Petitioner disputed this, thus why it filed an appeal. However, when it requested that the Ministry provides it with the medical certificates and documents used by the Intervener to support her application, this was refused by the Ministry on the basis that it was for internal use only [Exhibit P2].

 

20. In Vijay Construction (Pty) Ltd. v Ministry of Economic Planning and Employment [2010] SLR77, the court held that whilst a competent officer is not bound by the rules of evidence and normal court procedures, it is still required to brief both patties on the evidence collected and afford both parties the opportunity to comment on the evidence and adduce counter evidence. This is not surprising as it is trite that the right to a fair hearing involves the right to disclosure.

 

21. At para. 76, page 94 of Vol. I Administrative Law of Halsbury 's Laws, the following is stated:

 

"Natural justice does not impose on administrative and domestic tribunals a duty to observe all the technical rules of evidence applicable to proceedings before courts of law ... but it will generally be a denial of justice to fail to disclose to a party specific material relevant to the decision if he is thereby deprived of any opportunity to comment on it."

"The general principles that evidential material obtained .from an outside source must be disclosed for comment, and that in the absence of express authority a tribunal must not receive _{or appear to receive evidence ex parte and fail to disclose it to an interested party are well} ^{settled; but on grounds of public policy in limited circumstances it will be legitimate to withhold} certain types of relevant material, or the details or sources of such material, provided that the party concerned is not thereby denied a fair hearing" [emphasis added].

 

22. On the face of it, there was no public policy reason to refuse to provide the Petitioner with the evidence used by the Intervener in support of her application, Even if there was, this is not the reason which the Respondent relied on. In its email to the Petitioner, the representative of the Employment Department states that those documents 'are for internal use '. With respect to the Respondent, when it is exercising a statutory function, this is not a genuine and legitimate reason to refuse disclosure.

 

23. It is respectfully submitted that the Petitioner was never afforded the opportunity to address the evidence of the Intervener. Indeed, the Petitioner only saw the evidence used by the Intervener when the court allowed the Petitioner leave to proceed with the Petition and the Respondent was forced to provide the same. How can one appeal a decision if one does not have all the evidence used by the adjudicating authority to do so? How can one determine if the correct principle of law and fact have been used. This is similar in many regards to the failure to provide reasons. However, the Respondent did not fail to provide the evidence, it flat out refused to do so. A party must know what evidence was available and relied upon by the adjudicating authority if it is to argue against it, or, as is the case here, file a competent appeal. The Petitioner was forced to file its appeal blind and only in reliance of the letter from the competent officer which was light on any detail. It is thus submitted that the failure to disclose the evidence relied upon to make the determination, is a breach of procedural fairness.

 

UNREASONABLENESS & IRRATIONALITY

 

24. The Petitioner respectfully submits that the Decision was unreasonable and irrational in that no reasonable person, with the evidence placed before it, would reach the conclusion arrived to by the Respondent.

 

25. It is not in dispute that a judicial review is not an appeal against the merits of a decision. It is a review of the procedure used to arrive at that decision. However, as held in Vijay [supra], when determining the fairness and reasonableness of a decision, the court will invariably have to look into its merits. This is logical because in order to assess reasonableness, one has to see what decision has been made and why.

 

26. In this case, the competent officer states that the Intervene was unable to file a grievance within time due to medical reasons. The Employment Act states that the time limit is 14 days within becoming aware of the event. This would be her alleged termination by the Petitioner. Her grievance form is not clear on when the event occurred or when she became aware. According to her letter dated 01 September, 2020, since May, 2020 she had been informed that her role at the hotel resort of the Petitioner had changed. She then says that she has not been paid her salary since July, 2020. Indeed, even the Employment Advisory Board was unclear when the Intervener was alleging to have been terminated - they presumed it to be July, 2020 (please see the findings of the Employment Advisory Board, undated).

 

27. What is more, whilst the Intervener's grievance form is dated 9th September, 2020, she only filed her grievance on the 2nd October, 2020 as evidenced by the receipt of SCR 50/- in the name of the Intervener (one can see at the bottom of the grievance form that it states that a SCR50/- fee is payable upon submission of the form). This would mean, if we assume that the event complained of was in July, 2020, the Intervener filed her grievance more than 2 and a half months after the required time. Moreover, it took her almost a month

just to pay the grievance fee after having filled in the form. There is a distinct lack of urgency.

 

28. Now, it is not lost on the Petitioner that the delay, no matter how long, was condoned due to the Intervener's personal and medical circumstances. However, the delay is relevant vis a vis her alleged medical evidence.

 

29. Part of the bundle of documents disclosed by the Respondent are medical certificates which were relied upon by the intervener as justification for her inability to timeously file the ^{grievance. One would presume, for such an inordinate delay, that the medical certificates would} indicate serious or life threatening injuries or medical conditions that required, at the very least, weeks or months of recovery. This is certainly not the case.

 

30. Looking at the medical certificates (where one can decipher the doctor's handwriting), it appears that the Intervener suffered different issues, such as excess wax in her ear canal and some form of an infection or problem which required admittance for 4 days. One of the medical certificates state that she was admitted for 4 days on 8th July (presumably 2020). Thereafter, a month later, on the 4th August, 2020, there was the wax removal scheduled and rest prescribed. It does not appear that she was hospitalised as the documents state that she was to come in for a review on the 7th August, 2020. However, as far as proof of being on medical leave, the only document in support was that of a medical certificate dated 13th July, 2020 which gave the Intervener sick leave from the 9th July to the 16^th July. Most importantly, there is nothing to prove that she was confined to hospital or at home.

 

31. Indeed, as part of its appeal, the Petitioner attached evidence to prove that the Intervener was, at the very least, fit enough to write to the Registrar General about the Petitioner (letter dated 10^th August, 2020), take photographs on the beach, attend parties (4th July, 2020, 5th July, 2020 and 7th August, 2020), and file a court application for the interdiction of her father. She even appeared in person before the Supreme Court on the 2nd September, 2020 (please see court proceedings). All of this was done during her period of 'confinement at home and hospital'. The Petitioner argues that if the Intervener had the means to do all of these acts, including the signing of affidavits and filing of court applications, she could have easily filed a grievance form. That she failed to do so was evidently not because of personal or medical reasons.

 

32. The above has been enunciated to show that in the face of overwhelming evidence, the Minister still found \ that the delay was not attributable to the Intervener, the Petitioner submits that it cannot be overemphasised that the Intervener was months out of time. Her delay was significant, and, if discretion was to be exercised by the competent officer, and thereafter maintained by the Respondent, it goes without saying that those reasons had to be substantial and real. The Employment Act imposes a 'time limit for the registration of a grievance. This time limit cannot be taken for granted simply because the law also allows the competent officer to waive the time limit. The discretion must be used cautiously. The Respondent, in light of the evidence attached to the Petitioner's appeal, acted irrationally and unreasonably in maintaining the decision of the competent officer.

 

33. In Beau Vallon Properties [supra], the Court quoted Lord Diplock's famous dictum in Council of Civil Service Unions v Ministerfor the Civil Service [1984] UKHL 9:

 

"A decision is considered irrational if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who has applied his mind to the question could have arrived at it ..."

 

34. The Petitioner submits that to determine that the delays of the Intervener were not at all attributable to her is in defiance of logic and the evidence.

 

RESPONDENT'S SUBMISSIONS

 

35. The Petitioner wishes to certain points raised by the Respondent in its submissions on the merits. The first relates to the fact that the Petitioner participated in the mediation proceedings following the dismissal of its appeal. lt is the Respondent's contention that in doing so, the Petitioner has somewhat accepted the Decision and did not bring the matter to the Employment Tribunal as provided for under section 61 (J E) of the Employment Act. With respect to the Respondent, this is an erroneous argument.

 

36. Following the dismissal of its appeal, the Petitioner had no alternative but to participate in the mediation process as that is mandatory under the law. It is part and parcel of the grievance process. It could not have brought the dispute to the Employment Tribunal because it is not the grievance itself that is in dispute at this juncture - it is the fact that the Respondent allowed the registration of the grievance out of time. That is not a matter which the Employment Tribunal can rule on as it is not within its jurisdiction. The law provides that the competent officer decides if to register a grievance, and the parties have a right of appeal to the Minister. The present petition is against the decision by the Respondent to allow the Intervener to register her grievance and inter alia, dismiss the appeal of the Petitioner.

 

37. Additionally, it is the Respondent's position that all relevant evidence was taken into consideration by the Respondent in conjunction with the advice of the Employment Advisory Board. With respect to counsel for the Respondent, how is that apparent from the Decision? It does not say what was taken into account. It does not say why the grounds of the appeal were not maintainable. It literally parrots the determination of the competent officer. Nothing less and nothing more. Moreover, even if the Petitioner was given the opportunity to be heard, it is unaware if its arguments were ever engaged with or considered. This, as mentioned previously, is a procedural impropriety.

 

CONCLUSION

 

38. In conclusion, the Petitioner submits, for the reasons above stated, that the Decision by the Respondent was lacking in procedural fairness, irrational and unreasonable and prays for a writ certiorari quashing the Decision.” [Sic]

 

24. The Respondent made the following submission in reply:

1. That Ms. Brigitte Payet (the Complainant/Intervenor), General Manager of La Digue Island Lodge and an Executive Director of Gregoire’s Company (Pty) Ltd. Lodged a grievance against the Company/Petitioner herein of unfair dismissal, ill treatment and unpaid salary at the Employment Department, Ministry of Employment, Immigration and Civil Status on the 8^th September 2020. Copy of the Letter dated 8^th September 2020 and Worker Grievance Form are annexed as Annexure R/1 and R/2 respectively with the Objection on leave.

2. That Ms. Payet sought condonation of delay in lodging the grievance with relevant medical documents. Copy of the letter dated 14^th September 2020 and medical papers are annexed as Annexure R/3 (collectively).

3. That the delay in lodging the grievance was condoned by the Competent Officer being satisfied with the explanation and evidence adduced. Thereafter, the complaint/grievance was registered by the Competent Officer as MED/W/D/2020/166 and the petitioner was accordingly informed vide letter dated 28^th September 2020 (please see annexure P/1) and further informed the petitioner of its right to appeal against the Decision.

4. That the Petitioner lodged an Appeal before the Minister against the abovementioned Decision numbered as Appeal/2020/18. Notice was issued to the Parties that the said Appeal will be heard on the 6^th November 2020.

5. The Employment Advisory Board heard both the Petitioner and the Complainant Ms. Brigitte Payet on the issue of lodging the grievance out of time and ruled that the circumstances surrounding the delay are feasible and are not all due to the fault of the Complainant and accordingly advised the Minister to confirm the Decision of the Competent Officer in MED/W/D/2020/166. Copy of the Notice and Ruling of the Employment Advisory Board are marked as Annexure R/4 and R/5 respectively.

6. That on the 28^th December 2020, on careful consideration of the Appeal, relevant evidence and also taking into consideration the Advice of the Employment Advisory Board (Annexure R/5) the Minister upheld the impugned Decision of the Competent Officer citing the reason that the circumstances of the delay in lodging the grievance were not all due to the fault of the complainant.

7. That thereafter, the Petitioner did not challenge the Ruling of the Minister but instead chose to participate in the Proceeding in MED/W/D/2020/166/the Grievance of illegal/unjustified termination lodged by the Complainant against the Petitioner before the Competent Officer. The mediation to bring about a settlement failed and the Competent Officer issued certificate in accordance with Section 61(1D) of the Employment Act, 2008 as evidence that both parties have undergone the mediation process. Copy of the Certificate is annexed as Annexure R/6.

8. That on issuance of such certificate by the Competent Officer an aggrieved party in accordance with Section 61(1E) of the Employment Act, to a grievance shall bring the matter before the Tribunal within 30 days if no agreement has been reached at mediation.

9. That the petitioner after having its Appeal dismissed by the Appellate Authority namely the Minister, chose not to challenge the Decision of the Minister at first instance but participated in the Mediation Proceeding in MED/W/D/2020/166 before the Competent Officer and after the mediation to arrive at a settlement failed, the petitioner instead of bringing the matter before the Tribunal in accordance with Section 61(1E) of the Employment Act, 2008, filed this instant Judicial Review against the Decision of the Minister.

Law on Judicial Review

10. The law on judicial review in Seychelles is found in Rules of the Supreme Court (Supervisory Jurisdiction Courts, Tribunals, Adjudicating Bodies) Rules 1995 (“The Rules”). There are two stages to a judicial review petition. Firstly, there is the leave stage and secondly, it is the merits stage. This is where the court assesses the case on this substance.

11. Judicial Review is not about correctness of the decision challenged is reasonable and not arbitrary or without procedural impropriety. In the case of Jivan vs Seychelles International Business Authority (MC 15/2013) [2016] SCC 108 the Court pointed out that when administrative decision or act or order is subject to judicial review, ‘the Court is concerned only with the “legality”, “rationality” (reasonableness) and “propriety” of the decision in question’.

12. The Court also notes that in Judicial Review matters, the concern is not so much as to what decision was taken, but how the decision was reached. It is the process of the decision-making that is reviewed. (Jouanneau v Seychelles International Business Authority (Civil Side No 90 of 2010) [2011] SCSC 48 (28 July 2011))

13. That there is no unreasonableness as both parties were given equal opportunity to be heard, adduced relevant evidence which were taken into consideration by the Employment Advisory Board and on being satisfied passed its Ruling/Annexure R/5 and advised the Minister accordingly as required.

14. That the Minister on careful consideration of the appeal, relevant evidence adduced and on the advice of the Employment Advisory Board upheld the Decision of the Competent Authority to condone delay and registered the Grievance. Reason is given in arriving at the impugned Decision that the circumstances surrounding the delay are not all due to the fault of Ms. Payet. Therefore, the impugned decision of the Minister is not unreasonable, unjustified, irrational, arbitrary or illegal nor was the Petitioner denied its right to natural justice or any prejudice caused. The Respondent also acted within its mandate and committed no procedural impropriety.

15. On the other hand, there is abuse of process and/or forum shopping by not challenging the decision of the Minister at first instance but instead choosing to participate in the Mediation proceeding. And on failure of the Mediation proceeding, the Petitioner filed for Judicial Review of the Minister’s Decision.

16. The Petitioner ought to have appealed before the Employment Tribunal on failure of mediation in accordance with Section 61(1E) of the Employment Act. Having not exhausted the available remedies, the petition lacks ‘Good faith’.

17. That the present Petition is devoid of merits, hence it is prayed that this Judicial Review be dismissed with cost.” [Sic]

18. The Petitioner initially made several claims as stated in paragraphs 10 and 11 of the Petition above; namely;

1. The Decision was procedurally improper in that:

a. It did not state the reasons why the failure to register the grievance out of time was not the fault of the Complainant;

b. It did not disclose the evidence used by the Complainant to justify her application to register a grievance out of time thus denying the Petitioner an opportunity to have all the facts and evidence for the Appeal.

2. The Decision was unreasonable in that it failed to give comprehensive and clear reasoning’s for the outcome reached, simply stating arbitrarily that the ‘circumstances surrounding the delay are not all due to the fault of the Complainant’ without delving into what those circumstances are.

3. The Decision was irrational in that the Petitioner attached clear evidence to the Appeal of the Complainant’s disingenuity about her personal circumstances and health which affected her ability to file the grievance within time, but this was not considered or addressed whatsoever by the Respondent in the Decision or at all.

4. The Petitioner avers that the Petition is made in good faith and that it has sufficient interest in the matter as the Decision has directly affected it, being that it has allowed the Complainant to register a grievance under the Act against the Petitioner and it is seriously aggrieved by it.”

 

26. The Petitioner moved the Court for the following remedies:

a. to grant the Petitioner leave to proceed with this Petition;

b. to direct the Respondent to disclose to the Petitioner all records and documents related and incidental to the Decision;

c. to issue a writ of certiorari quashing the Decision;

d. to make any other order it deems fit and appropriate in all the circumstances of this case; and

e. for costs.

27. After hearing the objections of the Respondent, the Court allowed the Petition to proceed on the merits with all relevant disclosures made prior to the hearing on the merits. Consequently, prayers a and b have already been granted. Further, although the Petitioner had set down 4 grounds for review, these were reduced to the following grounds in its final submission, namely “that the Decision by the Respondent was lacking in procedural fairness, irrational and unreasonable”.

28. Article 125(1)(c) of the Constitution of the Republic of Seychelles provides as follows:

125 (1) There shall be a Supreme Court which shall, in addition to the jurisdiction and powers conferred by this Constitution, have -

(a) …;

(b) …;

(c) supervisory jurisdiction over subordinate courts, tribunals and adjudicating authority and, in this connection, shall have power to issue injunctions, directions, orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto as may be appropriate for the purpose of enforcing or securing the enforcement of its supervisory jurisdiction; and

(d)…

29. The first contention is whether or not there was a fair hearing. The right to a fair hearing would have arisen if it was necessary for the Respondent to hear the Petitioner and the Intervener before coming to a decision on the matter. Section 65 of the Employment Act provides for appeals against a decision of a competent officer:

‘‘65(1) Subject to subsection (2), wherever an employer or worker is aggrieved by an authority, approval, decision or determination of a competent officer, the employer or the employers' organization on behalf of the employer, the worker or the Union on behalf of the worker, may appeal against it to the Minister.

 

(2) An appeal under subsection (1), other than an appeal against a determination of the competent officer consequent upon initiation of the negotiation or grievance procedure, shall be lodged with the Chief Executive within 14 days or such other period as may be prescribed after the date on which the authority, approval, decision or determination was given."

 

The Petitioner appealed the decision of the Competent Officer to allow the grievance by the Intervener to proceed out of time. The Petitioner also proceeded with the negotiation procedure under section 65(2). I see no conflict between the two simultaneous actions by the Petitioner as they the provisions of the Employment Act does not restrict the process to a choice of procedure. The contention of the Respondent on that issue therefore has no basis and is rejected accordingly.

30. The Petitioner’s contention is that the reason for the Competent Officer to allow the appeal out of time was not released to the Petitioner and consequently did not allow the Petitioner to have a fair hearing. However, the Petitioner admitted that it was made aware that the reason for the delay in initiating the grievance procedure was not wholly attributable to the Intervener. It is not for the Court in judicial review proceedings to re-assess the evidence adduced before the Competent Officer, the Employment Advisory Board or the Minister. If the Court was to analyse the evidence and determine whether the Minister erred in his assessment of evidence before him, it would akin to an appeal against the decision of the minister rather than the judicial review of the process by which the Minister reached the decision it did.

31. The Court may nevertheless have cursory consideration of the evidence for the purpose of having an indication as to whether the decision arrived at by the Minister was so outrageous and/or irrational that no reasonable person or authority would have come to, based on the evidence before it. The contention of irrationality and unreasonableness shall be considered later but the Court finds at this stage that the Petitioner had been given sufficient information by the Competent Officer which allowed the Petitioner to appeal the decision and in the process to adduce further evidence against the contention of the Intervener of her supposed medical predicaments which prevented her from initiating the grievance procedure within all the prescribed time.

32. On that contention I find that the Petitioner had the necessary information and was given the reason for allowing the grievance to be registered out of time. The fact that the Competent Officer and the Minister accepted the reason given by the Intervener and rejected the contention of the Petitioner has not been appealed against. That decision cannot be subjected to judicial review except if the decision lacked procedural fairness, was so irrational or unreasonable that no reasonable person or authority could have reached the same.

33. This brings this Court to the contention of the Petitioner that the appeal to the Minister lacked procedural fairness. Section 65 of the Employment Act has the relevant provisions for appeals and reviews by the Minister in respect of the decisions of the Competent Officer:

“65(1) Subject to subsection (2), wherever an employer or worker is aggrieved by an authority, approval, decision or determination of a competent officer, the employer or the employers’ organization on behalf of the employer, the worker or the Union on behalf of the worker, may appeal against it to the Minister.

(2) An appeal under subsection (1), other than an appeal against a determination of the competent officer consequent upon initiation of the negotiation or grievance procedure, shall be lodged with the Chief Executive within 14 days or such other period as may be prescribed after the date on which the authority, approval, decision or determination was given.

(3) Where the competent officer who gave the original authority, approval, decision or determination is the Minister, the right of appeal under subsection (1) gives place to a right of review by the Minister.

(4) Upon an appeal or review under this section, the Minister may consult with the Employment Advisory Board before giving the ruling on such appeal or review.”

34. Having considered the documents adduced as exhibits, I find that the Minister abided by the provisions of the Employment Act. The decision of the Competent Officer to allow the grievance to proceed out of time is not subject for judicial review. It is only the Minister’s decision upon appeal. The Minister followed all procedural requirements including consulting the Employment Advisory Board before upholding the determination of the Competent Officer. Further, whether or not a person was given a fair hearing of his case depends on the circumstances and the type of the decision to be made. The minimum requirement is that the person gets the chance to present his case. See the case of Ridge v Baldwin [1964] AC 40. I find that the Petitioner was given the chance to present its case both before the Competent Officer and the Minister through the Employment Advisory Board as required by law and the Minister came to the decision without violating any set or lawful procedure.

35. The third contention of the Petitioner is that the decision of the Minister was irrational and unreasonable, which I shall consider together as they are interlinked.

36. In the case of Associated Provincial Picture Houses v Wednesbury Corporation (1984) 1 KB 223, the stringent test required to find a decision to be unreasonable is that it is a decision

“which is so outrageous in its defiance of logic or of accepted moral that no sensible person who had applied his mind to the question to be decided could have arrived at it.

The decision of the House of Lords has been accepted and applied in this jurisdiction numerous times since. The two cases where the decision has been followed are Georges v Electoral Commission [2012] SLR 199 and Vidot v Minister if Employment and Social Affairs [2000] SLR 77.

37. In R v Broadcasting Complaints Commission, ex parte Owen [1985] QB 1153, the broadcasting authority refused to consider a complaint that a political party has been given too little broadcasting time mainly for good reasons, but also with some irrelevant considerations. It was held that the irrelevant considerations were not of material influence on the decision. In this case, I also find that it was not so unreasonable for the Competent Officer and the Minister to give the benefit of the doubt to the Intervener despite the possibility of some untruth in her reasons why she failed to initiate the grievance procedure within the timeframe of 30 days required by the Employment Act.

38. It must be noted that in any event the Competent Officer and the Minister do have discretion to allow a complainant to initiate the grievance procedure outside the prescribed period. The Intervener in fact initiate her complaint more than 2 ½ months after the alleged termination and alleged violations of her terms of employment. There is no limit or indication on how long such discretion can be exercised. Obviously, it would be within reason to believe that a disproportionately long time may give rise to the claim of unfairness. The lack of weight placed on the Petitioner’s contention that the initiating of the grievance procedure by the Intervenor was not only over two months out of time but also contained untrue assertions of her medical condition show that there might have been erroneous assessment of the evidence by the Minister but they are not fatal to the decision of the Minister to allow to grievance procedure to be initiated out of time.

39. Finally, I find that as illustrated in the case of Ridge v Baldwin [1964] AC 40 the minimum requirement is that the person gets the chance to present his case. This principle was applied by both the Competent Officer and the Minister. I therefore conclude that this Petition is not properly grounded and lacks merit for this Court to exercise its powers of revision in favour of the Petitioner.

40. Consequently, the prayer to issue a writ of certiorari quashing the decision of the Respondent is denied and the Petition is dismissed in its entirety.

41. I make no order for costs.

Signed, dated and delivered at Ile du Port on 20^th day of June 2024.

 

____________

G Dodin

Judge