La Belle Tortue Ltd v Robert (CA 11 of 2023) [2024] SCSC 171 (4 October 2024)

Introduction

1. This is an Appeal from the decision of the Employment Tribunal dated the 28^th July 2023 in case No 219/22.
2. The grounds of Appeal are as follows;

1. The learned Vice- Chairman of the Employment Tribunal erred in entering judgment against the Appellant for non-payment of 10 days annual leave to the Respondent by overlooking the provision of the Employment Act which prohibits double payment of entitlement. By so doing she has mis-interpreted Regulation 9 of subsidiary Legislation, section 40 of the Employment Act.
2. The learned Vice- Chairperson erred in her findings and failed to consider the crucial part of the evidence adduced and produced by the Appellant with regards to payments agreed, accepted and cashed in by the Respondent well before he manifested second thoughts.

 Submissions of counsels

3. Counsel for the Appellant submitted to the Court that on the 13^th October the Appellant had tendered his letter of resignation explaining that he had found a job elsewhere. According to counsel by accepting to go without completing the working month, the Respondent accepted to forfeit his 10 days annual leave by ending his employment before 13^th November. If the Respondent was not in agreement, he should have refused to take the cheque and proceed on leave. Counsel for the Appellant referred to exhibit A1 and submitted that the learned Magistrate failed to consider exhibit ‘A’ that the Respondent had expressly accepted the whole salary and 13 days salary in a bid to leave his employment immediately and take on his new employment. In doing so the Respondent had forfeited his rights to obtain mutual agreements of the parties in line with section 40 Regulation 9. That on second thoughts the Respondent only a month later made a claim for 10 days leave against the Appellant in order to have a second bite of the cherry and relied on the case of Mahe Builders V/S Madeleine CA 29 of 2018, 19 SCCSC 292 which held that a worker is not entitled to wage he has not earned.
4. Counsel further submitted that the Employment Tribunal misinterpreted the evidence given by the Appellant during the hearing and that the evidence witness Casse being a French speaking lady in absence of a translator in regards to off and PH was not properly translated  and by doing so, the learned Vice –Chairman imposed her own qualification resulting in the wrong determination and confusion in favour of the Respondent against the Appellant.
5. On the other hand, Counsel for the Respondent relied on Regulation 9 of the Employment  (Conditions of Employment) Regulations which according to counsel provides that any annual leave must be mutually agreed by the employer and employee and that it was on this basis that the Employment Tribunal came to its findings that annual leave had not been taken in accordance with Regulation 9, because it was a unilateral decision of the employer to send the employee on annual leave without having sat down and see whether they could mutually agree of which in a way it was forced or imposed by the employer on the employee and referred to the Judgment where according to counsel Miss Casse admits having unilaterally put the Applicant on annual leave for 10 days before his notice period had ended.
6. According to counsel for the Respondent, after the Respondent had tendered his notice, the Appellant basically requested the Respondent to stop working and then paid him his dues and deducted the 10 days annual leave until his notice would have come to an end. Counsel also submitted that exhibit ‘A’ referred to as ‘solde de tous compte’ is an unsigned document.  Counsel for the Respondent further submitted that no records have been produced which shows that there was mutual agreement of the parties to take annual leave and that exhibit ‘A’ clearly shows that there was a clear imposition of annual leave on him and that they were treating this as annual leave.
7. Counsel for the Respondent relied on the evidence of the Respondent given before the Employment Tribunal on the 14^th June 2023 where he stated that ‘two weeks after tendering my notice received a call to go to job plus, got there, handed my resignation after. This is when he is given the letter on the 28^th that he should stop working and that at no point did he accept or admit or said that he had mutually agreed with the employer to take his annual leave.

Analysis and determination

8. As regards to ground 1 and ground 2 of Appeal, the Appellant has asked this Court to consolidate the said 2 grounds of Appeal and hence this Court shall treat both grounds of Appeal together.
9. This Court hereby reproduces Regulation 9(2) of the Employment (Conditions of Employment) Regulations which states the following;

‘Subject to this regulation, the annual leave entitlement is taken each year by mutual agreement between the employer and worker but the employer shall ensure that a worker, engaged by him under a contract of continuous employment or under a contract for a fixed term which last for a year or more, takes a minimum period of 14 consecutive days in a year, unless the worker has, under the mutual arrangement, agreed to accumulate his leave entitlement.’

Regulation 9(4) provides as follows;

‘Where it is mutually agreed between an employer and a worker, the leave entitlement of the worker in any year may be converted into cash payable in that year.’

10. This Court has considered the submissions of Counsel for the Appellant and Counsel for the Respondent as well as Regulation 9(2) of the Employment (Conditions of Employment) Regulations and is of the view that the words used in the said Regulation is couched in mandatory terms that is the taking of the annual leave by the Employee each tear has to be mutually agreed beforehand by the employer and the worker and that no employer can unilaterally decide or force a worker to take his annual leave.
11. The issue before this Court to be determined as regards to both grounds of Appeal is that whether there is any evidence on the record of proceedings before the Employment Tribunal which shows that there was any mutual agreement between the Employer and the worker namely Mr Alain Robert that he would take his 10 days annual leave and not continue to work until his period of notice had ended.
12. This Court has perused meticulously the record of the proceedings of the 30^th June 2024 before the Employment Tribunal where the worker Mr Alain Robert has given evidence and stated the following;

‘I was employed as a skipper. Well trained everything went well until resigned 13^th October 2024 to stop November. Two weeks after tendering notice, received a call to go to Job plus. Got there handed resignation letter. Saw 10 days that was not paid to me’.

He further stated ‘all this without my consent got a phone call to give me my termination letter’.

On the proceedings of the 8/10 until 13/11/ 2022 he stated the following;

‘I was dismissed, I wanted to work until the 13^th November’.

13. This Court hereby reproduces the evidence of Mrs Corra Casse who gave evidence on behalf of the Appellant before the Employment Tribunal as follows;

Question: Did applicant tell you, he did not want to work?

Answer: No           

We didn’t need him had another skipper told could put him on annual leave.

Question:  You decided to put him on Annual Leave

Answer: I decided with the company.

              HR told us that we could do this.

14.  This Court has also considered the document of which both counsels have referred to which was produced before the Employment Tribunal referred to as ‘solde de touts comptes’. This Court takes note that the said document is an unsigned document and bears no signature of either a representative of the Appellant nor that of the Respondent.
15. This Court has meticulously considered the evidence led before the Employment Tribunal  as per the record of the proceedings as referred to in paragraphs 12, 13 and 14 of this Judgment and find that there is no evidence on the record of the proceedings before the Employment Tribunal which shows that there was any mutual agreement between the Employer and the worker namely Mr Alain Robert that he would take his 10 days annual leave and not continue to work until his period of notice had ended.
16. This Court further finds that the decision to put the Respondent Alain Robert on 10 days annual leave before the expiration of the period of notice was as a result of the unilateral decision of the Appellant in view that the Respondent did not agree to being put on annual leave before the expiration of his period of notice. Hence, this Court finds that the learned Vice-Chairman of the Employment Tribunal did not erred in entering Judgment against the Appellant for non-payment of 10 days annual leave to the Respondent and did not overlook the provisions of the Employment Act and did not misinterpret Regulation 9 of subsidiary Legislation, section 40 of the Employment Act. Further I do not agree with the submissions of learned Counsel for the Appellant that this concerns the issue of double payment but rather that it concerns the Respondent being a worker who never agreed to the taking of his annual leave.
17. For the above reasons, I also find that the learned Vice-Chairperson did not erred in her findings as she did not fail to consider the crucial part of the evidence adduced and produced by the Appellant with regards to payments agreed, accepted and cashed in by the Respondent well before he manifested second thoughts. Hence this Court disagrees with the submissions of counsel for the Appellant since this Court is of the view that the fact that the Appellant took and cashed his cheque does not show that he agreed to taking his annual leave in view of the mandatory provisions of Regulation 9(2) of the Employment (Conditions of Employment) Regulations.
18. As a result of the above, I hereby dismiss ground 1 and ground 2 of this Appeal, and hence dismiss this Appeal with cost.

Signed, dated and delivered at Ile du Port on the 4^th October 2024.

……………………………………………

D. Esparon J