IN THE SEYCHELLES COURT OF APPEAL

[Coram:      F. MacGregor (PCA) , A. Fernando (J.A),   J. Msoffe (J.A)]

Civil Appeal SCA 01/2013

(Appeal from Supreme Court Decision CS189/2011)

Heard:             05 December 2014

Counsel:          Mr. Basil Hoareau for Appellant 

                        Mr. Hemanth Kumar for Respondent 

Delivered:       12 December 2014

JUDGMENT

F. MacGregor (PCA)

[1]    The Appellant is the management company for the Four Seasons Resort at Baie Lazare, Mahé. The 1^st Respondent was the officer competent to hear grievances related to employment issues under the Employment Act 1995. The 2^nd Respondent was an employee of the Appellant. Following an incident at work, namely the damage to a motor vehicle, the 2^nd Respondent was disciplined by the Appellant. He registered a grievance against it on the 22^nd May 200 pursuant to section 2, Part II, Schedule I of the Employment Act.

[2]    The Competent Officer set a date for mediation of this matter. At the mediation this was objected to by the Appellant on the grounds that the grievance application was filed out of time. The Competent Officer took the decision that having asked the 2^nd Respondent to furnish  reasons for  his failure to file the  grievance  out of time  and  having received the same she had exercised her discretion to allow the registration of the grievance out of time.

[3]    The Appellant petitioned the Court for a judicial review for the Competent Officer’s decision to register the grievance out of time on the grounds that the 1^st Respondent had failed to give the Appellant the opportunity to be heard on the issue and that the 1^st Respondent had failed to give sufficient reasons for the delay in filing the grievance application.

[4]   The learned Judge Karunakaran J after hearing oral arguments from Counsel decided that administrative discretion had been conferred on the Competent Officer to regulate the registration of grievances and that such exercise would neither affect the substantive interest of the employer in the proceeding nor violate principles of justice and reasonableness.

[5]   The Appellant has appealed this decision on the following grounds:

1. The learned trial judge erred in law failing to hold that the Respondent had a legal obligation, to furnish the Appellant with the clear and explicit reasons, for allowing the lodging of the grievance procedure by Nabil Servina, after the 14 day period time limit, from the beginning of the event, act, or matter giving rise to the grievance.
2. The learned trial judge erred in law failing to hold that the decision of the Respondent to permit Nabil Servina to lodge his grievance procedure out of time was (in the circumstances of the case, including on the basis of the averments contained in the objection to the petition and the attached affidavit) ultra vires and/or unreasonable, unfair and irrational.

[6]  Mr. Hoareau for the Appellant has submitted that it was incumbent on the Competent Officer to exact clear and explicit reasons from the 2nd Respondent as to the delay in his registration of the grievance. The reasons were never given to the Appellant or to the Court and in the circumstances it was impossible for the Court to exercise its supervisory jurisdiction as it was wont to. Mr. Kumar for the Respondent was of the view that the reasons do not need to be disclosed as they only serve to allow the Competent Officer to exercise her discretion. We are unable to agree with this view given the duties and powers of the Supreme Court in its supervisory jurisdiction of the Competent Officer under section 79 of the Employment Act. The Court cannot so act if is not seized with the reasons on which the Competent Officer acted.

[7]  Mr. Hoareau has also submitted that the learned trial judge did not alert his mind to the appropriate legal provision in this matter namely paragraph 2 (3) of Part II, Schedule I of the Employment Act. This provision states:

“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.” (our emphasis)

[8]  In handing down his decision, the learned judge quoted section 2(3) Part II Schedule I, which before amendment read as follows:

“An employee 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 registration was impracticable or if the officer has his himself suspended registration under sub paragraph (2) shall allow registration out of time.” (our emphasis)

[9]  It will be noted that the words “was impracticable” quoted above by the judge no longer appear in the amended version of the sub-rule. The words “not attributable” have now been inserted therein in place of the previous words.

[10]  In our view, a true construction of the sub-section as amended means that the words “are not attributable” have brought in a new feature. What it means is that in deciding whether or not the failure is “not attributable” to the employer the competent officer has to call him /her/.  Once the Competent Officer does so, then he/she should assign reasons in his/her decision.

[11]  For this reason learned Counsel for the Appellant, Mr. Hoareau is correct in asserting that the Competent Officer ought to have given reasons for her decision.

[12]  Hence there is merit in the appeal which we hereby allow as prayed.

F. MacGregor (PCA)

I concur:.                                ………………….                                           A. Fernando (J.A)

I concur:.                                ………………….                                           J. Msoffe (J.A)

Signed, dated and delivered at Palais de Justice, Ile du Port on 12 December 2014