IN THE SUPREME COURT OF SEYCHELLES

Civil Side: CA 01/2015
[2016] SCSC 394

ANDREW FLORENTINE                   

versus

SEYCHELLES PUBLIC TRANSPORT CORPORATION

Heard:             18 January 2016

Counsel:          Mr. Gabriel for appellant
           
                        Mr. Shah for respondent
           
Delivered:        6 April 2016

JUDGMENT

Akiiki-Kiiza J

[1] This is an appeal from the Judgement/Ruling of the Employment Tribunal for Seychelles dated the 10th December 2012 wherein it dismissed the appellant's application for one month salary in lieu of notice 112.5 days compensation for length of service, 19 days annual leave and unpaid salary from the 27th October 2012 to 24th July 2014- when he was in custody.

[2] The appellant had been an employee of SPTC as a bus driver. That on 27/10/12, while on official duty he made some unauthorised stops and offered peopled lifts in the bus without having them to pay. He was subsequently arrested on prohibited drug related charges and was detained but later it appears the charges were dropped by the prosecution, but the Respondent nevertheless dismissed him.

[3]  Upon his release from prison he went back to resume work but the Respondent declined and told him that his employment had been terminated effective 27th October 2012 when he had made unnecessary and unauthorised stops while on official duty and when he had offered free lifts to passengers. In short he was dismissed for his misconduct at the job. The Employment tribunal dismissed his application for the reliefs pointed out herein above, hence this appeal.

[4]  The Appellant raised the following grounds in his Memorandum of Appeal.

a) That the decision of the Employment Tribunal is wrong in law and fact and against the whole of the evidence adduced in favour of the Appellant.
b) That the learned chair person erred in law and in fact by ignoring key provisions of the Employment Act and making biased ruling in favour of the Respondent.
c) That in all circumstances the ruling of the Employment tribunal is wrong in law and in principle.
    Therefore the Appellant prayed for the Court to quash the decision of the Employment Tribunal.

[5]  At the hearing, Mr. Nicole Gabriel appeared for the Appellant, and Ms. Poponneau represented the Respondents.

[6]  Mr. Gabriel basically urged that the Respondent's breached the provisions of the law, especially Section 56 of the Act, and that, his client was entitled to the reliefs sought.
 On the other hand Ms. Poponneau submitted to the effect that the Employment Tribunal reached the right decision as the appellant had breached the conditions of his service and in any case Section 39 of the Act protected the Respondent.

[7]  I have carefully considered to the submission of both learned counsel and I have also critically analysed the Lower Court Record together with the Ruling thereof.

[8]  In my considered view the Employment Act supplies the answer to this appeal. If the Respondent had Acted within the provisions when he terminated the Appellant's employment then, the appeal must be dismissed if not, then the appeal should be allowed.

[9]  It is common ground that the appellant breached some of his working procedure as a driver working for the Respondent. He admitted, that on the 27/10/12, while driving the bus belonging to the Respondent, he had made some unauthorised stops to buy fish, he had offered to wait for a parcel for his Chinese friend, and also offered some free rides in the bus.
 Secondly it is also common ground that he was stopped while driving the Respondent's bus on drug related cases. He was eventually taken to Police stations and later remanded at Montagne Posee Prison. He was later released on bail, and the matter was subsequently withdrawn by the prosecution.

[10]  After the withdrawal, the Respondent terminated the appellant's employment when he served him with a letter of termination and the termination took effect from the date of his arrest on 27/10/12. The following are my findings:-
I. The Appellant spent about 9 months on remand-  i.e. from 27/10/12 till 27/7/2013.
        Section 39 (b) of the Employment Act provides as follows:-
        "39. Where a worker-        
a) .......................
b) Is in prison or otherwise detained in lawful custody, no wages are due to the worker, and the employer may, at his discretion withhold payment for the period of absence, imprisonment or detention."
 Hence, the Respondent in their discretion decided not to pay wages to the appellant, and the above provisions allows them not to do so. However this covers only the 9 months when the Appellant was in both Police Custody at Beau Vallon Police Station and at Montagne Posee government prison.

[11]  It is my view that when he was released on bail on the 23/7/13, he was still under the employment of the Respondent hence he was entitled to his wages as he had seized to be under detention or imprisonment within the meaning Section 39 of the Employment Act. Under Section 56 of the same Act, the Respondent was entitled to carry out investigations into the misconduct of the Appellant's and then effect a suspension of the culprits.
 Under the Section 56 (1) (a) of the Act, the Respondent could suspend the Appellant without pay for one month.
 Under Section 56 (4) of the Act, the employer is enjoined to inform the outcome of the investigation within 40 days after the dates of suspension. In the instant case, 40 days from the 25/11/12 when the Appellant was suspended. However nothing came from the Respondent, though there is evidence on the lower Tribunal's record that Respondent knew he was under detention.

[12]  The Appellant received a letter terminating his employment from the Respondent on the 19th May 2014.They informed him that, the termination was effective from the 29/10/12. This letter was exhibit P3.
 It is my considered view that, the appellant got notice of the outcome of the investigations  carried out by the Respondent, not within the 40 days as provided for by Section 56 (4) of the Act, but after about19 months  (from 27/10/12 to 19/05/14).
 However the 19 months must be reduced by the 9 months (27/10/2012 to 23/7/2013) when the appellant was in lawful detention at Beau Vallon and Montagne Posee Prison as excepted by Section 39 (b) of the Act. This leaves 10 months.
Again out the 10 months, the Respondent are entitled 1 month in which no wages can be paid under Section 56 (1) (a) of the Act. This leaves 9 months.

[13] It is my view as the Appellant was notified of the results of the investigations on the 19th May 2014, he is entitled to the 9 months pay, as the Respondent had breached the provision of Section 56 (4) of the Employment Act. The termination (the result of the investigations) by the Respondent cannot be allowed to run retrospectively as this would be contrary to tenants of natural justice and good conscience. The Appellant was kept in the dark of his fate despite his checking on the respondents after he was released from prison.

[14]  All in all this appeal succeeds in the following terms:-

1) The appellant is entitled to 9 months salary.

2) As regards to the prayers  he had put before the Employment Tribunal regarding leave and on month salary in lieu of  the notice, these were not proved by evidence on the record. I therefore disallow them.
All in all this appeal succeeds partially to the above extent. The appellant will have 50% of his taxed costs, here and below.
    
Order accordingly.

Signed, dated and delivered at Ile du Port on 6 April 2016

D Akiiki-Kiiza

Judge of the Supreme Court