Pillay v Seychelles Broadcasting Corporation (CA21/2015 Appeal from Employment Tribunal Decision Civil Side No. 35 of 2015 ) [2016] SCSC 661 (29 July 2016);

IN THE SUPREME COURT OF SEYCHELLES

Civil Side: CA21/2015
Appeal from  Decision Civil Side No. 35 of 2015
 [2016] SCSC 661


BERYL PILLAY

    versus

SEYCHELLES BROADCASTING COPRORATION REPRESENTED BY ITS CHIEF EXECUTIVE OFFICE, HERMITAGE, MONT FLEURI, MAHE

 

Heard:        3rd day of February 2016


Counsel: Mr. S. Rajasundaram for the
             Mr. K. Shah for
           
Delivered:        29th day of July 2016

JUDGEMENT
Govinden-J

[1] This is an appeal from a Ruling of the Employment Tribunal (hereinafter referred to as the “Tribunal’s Ruling”), given on the 15th day of September 2015 in Civil Side No. 35 of 2015.
[2] In the Tribunal’s Ruling the Application of the Appellant was dismissed on the ground of no merit.
[3] Being aggrieved by the Tribunal’s Ruling, the Appellant has filed this Appeal before this Court raising a number of grounds as per notice and memorandum of appeal of the 23rd day of September 2015.
[4] Both Appellant’s and Respondent’s Learned Counsels have thereafter filed written submissions in support of their respective stance with regards to the Appeal of which contents have been duly considered for the purpose of this Judgement.
[5]    A brief history of the case before the Employment Tribunal giving rise to the Application subject matter of the Tribunals’ Ruling and this Appeal is as follows.
[6]    The Appellant was an employee of the Respondent on a contract for a period of two years commencing from the 1st day of January 2012 and ending on the 31st day of December 2013 (as admitted) in the office of  senior journalist. The tenure of the contract was of two years. The Appellant had completed her tenure of two years contract namely up to the 31st day of December 2013 and she continued her employment upon ‘expiry’ of the first contract until she resigned on the 20th day of March 2014. The Respondent applied the terms of the employment contract which ‘ended’ in December 2013 in that it claimed that there was no two month’s notice given from the Appellant and it deducted two month’s salary in lieu whilst accepting the resignation which was with immediate effect. The Appellant reproached the decision of the Respondent on the grounds that the latter was not entitled to two month’s salary in lieu of notice whilst it was entitled to only deduct one month salary in lieu in the instance of resignation as per the provisions of Employment Act. That there was no employment contract between the parties in force at the crucial time of the Appellant’s resignation.
[7]    The Employment Tribunal ruled against the Appellant on the above-mentioned date and the impugned Ruling in a gist provides that: (reproduced verbatim)
“(10)    There is no provisions in the Employment Act which says that where an employee is on fixed term contract, and after the expiry of the fixed term contract, the employment of that employee becomes on a continuous contract of employment if the employee remains in employment.
(11)    To determine the issues, or to find the answers to the question raised earlier, I have inter alia, looked at Clause 14.1 of the said employment contract dated the 1st day of January 2012. Clause 14.1 reads. I quote;
14.1    “A party who is desirous of renewing this agreement for any further term of engagement may, not more than 3 months or not less than 2 months before the end of a term of engagement referred to in Clause 2.1, notify the other party in writing, of its intention to that effect.” Clause 14.2 reads;
    “nothing in sub-clause 14.1 prevents the parties from agreeing to extend or renew a term of engagement under this agreement or to enter negotiation for this purpose otherwise than in compliance with the provision of the sub-clause.”
(12)    The existence of these two clauses in the fixed term contract dated the 1st day of January 2012, mean that the employment of the Applicant upon the expiration of the 2 year fixed term contract was to be on the same terms and conditions as the terms and conditions in the employment contract dated the 1st day of January 2012.
(13)    Therefore, it was the common intention of the contracting parties that after the expiration of the employment contract dated the 1st day of January 2012, the employment relationship between the parties would either continue on the same terms and conditions, or would be brought to an end by the Applicant giving effect to Clause 8 of the said contract. It is more likely than not, that had the Applicant completed another year in the employment of the Respondent, she would have requested payment of the end of contract payment, for example.
(14)    Article 1156 of the Civil Code of Seychelles Act reads, we quote,
“In the interpretation of contracts, the common intention of the contracting parties shall be sought rather than the literal meaning of the words.”
(15)    We therefore conclude, that although both parties failed to comply with Clause 14.1 to notify the other party, “not more than 3 or not less than 2 months before the end of the 2 year fixed term contract of their desire to renew the said employment contract, the Applicant's employment after the 31st of December 2013 was still on the same terms and conditions as those stipulated in the employment contract dated the 1st January 2012.
(16)    Equity would not allow the Applicant to benefit from her own wrong doing by failing to carry out her obligation under Clause 14.1 and 14.2 of the contract of employment dated the 1st January 2012.
(17)    For the aforesaid reasons discussed in this Ruling, this Tribunal sees no merit in the application, and accordingly, dismisses the application.”
[8]    The Appellant on the afore-mentioned notice of appeal has raised 5 grounds of appeal against the Tribunal’s Ruling as follows:
(1)    Firstly, that the Tribunal failed to appreciate legal incidents following the expiry of the employment contact, however the Tribunal recognised the employment contract expired on the 31st December 2013.
(2)    Secondly, that the Tribunal ought to have held that the status of the Appellant, pursuant to the expiry of the employment contract was that of “continuous employment” and not contractual in determining the issue of payment of one month salary.
(3)    Thirdly, that the Tribunal erred in invoking the legal principle of Article 1134 while it admits that the lawful contract expired and was not in force.
(4)    Fourthly, that the Tribunal erred in taking a “hypothetical” view on its own as to what would have happened if the Appellant continued her services for another two years.
(5)    The Tribunal erred in its wrong interpretation as to the silence of Employment Act in deciding the status of the Appellant who was in employment, pursuant to the expiry of her employment contract.”
[9]    Learned Counsel for the Appellant submitted in support of the grounds of appeal briefly, that the Appellant whilst accepting the deduction of salary in lieu of notice, the deduction should only be equivalent to one month salary and not two months as wrongly deducted by the Respondent. That this contention is based on the fact that there was no employment contact in force as the same was expired on the 31st day of December 2013. Hence, in such an event, the type of employment should only be that of continuous service and certainly not contractual services. It follows therefore, that section 60 (1) (c) of the Employment Act requires only one month notice to be given by the employee/Applicant. Since the Respondent deducted two month’s salary, it applied the wrong footing of the contractual terms whereas the contract agreement expired long prior to the resignation of the employee. Leaned Counsel for the Appellant further submitted that the Applicant did not give one month’s notice but resigned instantly hence the need to deduct only one month salary in lieu. It follows therefore, that she is entitled to one month salary (wrongly deducted for two months) in the sum of S.R. 14,089.00.
[10]    Learned counsel for the Respondent on his part objected to the appeal on two grounds briefly as follows.
(1)    Firstly, a plea in limine litis is being raised pursuant to Article 2224 of the Civil Code of Seychelles to the effect that, “A right of prescription may be pleaded at all stages of legal proceedings, even on appeal, unless the party who has not pleaded it can be presumed to have waived it”.
    It is submitted that the Respondent is reintroducing the issue before the Supreme Court that the claim registered by the Appellant was prescribed. That this plea was raised in the Employment Tribunal. That the Appellant resigned in March 2014 and was paid her dues less than two months’ salary in lieu of notice. That it was in 2015 that the Applicant made an application that she had been given the wrong dues and claiming one month’s salary. Her application was some 12 months after the alleged act that caused her grievance. That the law is clear when it comes to the Employment Act that there are strict time limits to bring claims and she simply had not brought her claim within the given time limit.
    That it is not in dispute that the Competent Officer has the discretion to allow for a grievance to be registered out of time. However, despite the strong guidance provided by the Supreme Court in the case of Vijay Construction v Ministry of Economic Planning and Labour [2010] SCSC 123‘for a pre-trial enquiry to be held to judiciously establish whether there are good reasons shown for allowing grievances for accrued claims to be filed so long after the cause of action arose. That such a pre-trial enquiry was never carried out.’
    That in the absence of Counsel at the stage of mediation which was not encouraged by a note issued to the parties to the mediation to the effect that “Any party may be represented by a person on the party’s choice. Both parties are discouraged from being legally represented at mediation on grounds that it is considered an obstacle to successful mediation.”
    That following such a note and the Competent Officer failed to bring the matter to the attention of both parties the case reached the Employment Tribunal ‘although the right had been prescribed’. It is only when the Respondent sought advice from counsel and was represented by counsel in the Employment Tribunal that this plea in limine was raised at the Employment Tribunal.
    Further, submissions before the Employment Tribunal on the point of law was relied upon for the purpose of this appeal.
    (2)    Secondly, the Respondent on the merits of the Appeal in a gist     submits, that in the contract of employment between the Appellant     and the Respondent section 14.1 places the onus on the Appellant     to indicate whether there are intentions to renew. That neither     party complied with this renewal clause. That in view of the non-    objection of the Respondent to the implied agreement that the     termination date of the fixed-term contract ended on the 31st    December 2013, it is therefore submitted that her employment ran     on the same terms of employment as her contract, which specified     that if she intended to determine her engagement she had to give     two months’ notice or pay two months;’ salary in lieu of notice.
        It is further submitted that there is no provision that if a fixed term     contract expires then the employment becomes on a continuous     contract of employment if the employee remains in employment.     And     that the intention of the parties are ascertained from the     contract itself as stated by the Employment Tribunal at paragraphs     12 to     14 of its Ruling.
        It was thus submitted that the Appellant was working on the same     terms and conditions of the contract as a Senior Journalist on the     same salary and was bound by the same term for determination of     engagement, namely 2 months’ notice and that in failure to     determine her contract without giving two months’ notice a two     months’ salary deduction in lieu of notice was a deduction     authorised by law.
[11]    Now, this Appeal stands or falls on the point of law as raised by the Respondent and hence the Court will treat the plea in limine litis as raised foremost on which Ruling the other grounds of appeal are dependent.
[12]    It is of paramount importance to note that should the procedural law be eschewed and avoided or flouted in any legal proceedings, it undermines the “Rule of Law” and “Judicial process”, which is detrimental to the legal system and society at large.
[13]    On the basis of the above reflection, the Court clearly notes and considers the submissions of Learned Counsel for the Respondent as illustrated at paragraph [10] (1) above as well as the Ruling of the Learned Magistrate in the Employment Tribunal’s Ruling of the 2nd day of June 2015 more particularly, (at pages 2 to 4 thereof) specific to the plea in limine litis.
[14]    The relevant Article 2224 of the Civil Code of Seychelles (Cap 33), which     is the basis of the plea in limine litis as raised provides that:
“A right of prescription may be pleaded at all stages of legal proceedings, even on appeal, unless the party who has not pleaded it can be presumed to have waived it.”
[15]    In the matter before the Employment Tribunal, Learned Counsel for the     Respondent raised the point of law at the first opportunity on appeal     from the decision of the Competent Officer on the above argued basis and     was subject to the Ruling of the Employment Tribunal of the 2nd day of     June     2015 which was briefly to the effect that:
“(10)    The question which we ask ourselves at this juncture, is, does Article 2224 of the Civil Code of Seychelles Act has any relevance to the circumstances of this case. Learned Defence counsel raises the issue of prescription as the substantive law as is known to us. Article 2224 quoted by counsel is procedural law. For the purposes of this Ruling we are more concerned with the latter. Therefore, although Article 2224 of the Civil Code of Seychelles Act states the general procedural law, we are of the opinion that article 2224 cannot apply to the circumstances of the instant case.
(11)    We agree with learned counsel for the respondent that a point of law can be raised at any point in the proceedings as it was said in the case of Muskwe v/s Nyajna & Ors SC 17-12. The Court correctly quoted the law when it said we quote: “undoubtedly, a point of law can be raised at any point even though not pleaded. However, this is subject to certain considerations one of which is that the Court has to consider whether raising a point of law at this juncture would cause prejudice to the party against whom it is raised.”
(12)    Therefore, the theme that runs through the principles is that a question of law can be raised at any stage of the proceedings provided it does not occasion prejudice to the other party. These principles are subject to the absence of clear provisions governing procedures in particular proceedings. It is particularly applicable where the procedure in question does not provide a sufficient remedy for raising a point of law. The principles, in our own opinion, do not, on their own, provide a separate legal basis on which a Court can ignore explicit provisions of law to deal with the raising of the question of law.
(13)    It is within this background therefore that we believe that because there are clear statutory provisions governing the grievance procedure under the Employment Act 1995, the procedural law provided for under the grievance procedure ought to have been followed. In other words, the Respondent having been aggrieved by the decision of the Competent Officer to allow the application out of time should have appealed to the Minister responsible for Labour, and if unsuccessful, should have filed a Petition for judicial review before the Supreme Court.
(14)    We also feel that there is also an issue of jurisdiction. By the plea in limine Learned Counsel for the Respondent is effectively calling on us to review the decision of the Competent Officer
(15)    If we conclude that the Competent Officer was wrong to allow registration of the application because it was time barred, and then rule that the application is time barred, we would be effectively determining an issue which we do not have jurisdiction to determine as a matter of procedural law. For these reasons stated in this Ruling, therefore, this Tribunal dismisses the plea in limine litis.”
[16]    Now, it is clear that Article 2224 as illustrated provides for a right of prescription which may be pleaded at all stages of legal proceedings, even on appeal, “unless the party who has not pleaded it can be presumed to have waived it”.
[17]    Now, there is no ambiguity in the wording of Article 2224 and the principle is subject to only one exception which is “unless the party who has not pleaded it can be presumed to have waived it”.
[18]    It is undisputed that the claim of the Appellant before the Competent Officer was out of time and or prescribed for having been filed one year after its prescribed time limit as provided by the Schedule I Part II of the Employment Act in instances of grievance procedures. It is also clear that at the time of the hearing rather mediation before the Competent Officer the Respondent was unrepresented and was discouraged by way of written notice issued to him by the Competent Officer to get legal representation at the mediation on grounds that it is considered an obstacle to successful mediation hence absence of counsel at the relevant time and on that basis, the Respondent cannot be blamed or considered with respect to have waived his right to raise prescription as done now and to consider the Respondent’s exercise of his right at the stage of appeal being subject to the prejudice to the other party “is in my humble opinion not only absurd but unjustified in all the circumstances of this case”.
[19]    Further, having carefully perused the case of Vijay Construction v/s Ministry of Economic Planning and Labour [2010], the Supreme Court provided strong guidance as to the exercise of the discretion of the Competent Officer in allowing a grievance to be registered out of time namely as follows:
    “My direction to COS in that in future when such a situation arises, a pre-trial enquiry ought to be held to judiciously establish whether there are good reasons shown for allowing grievances for accrued claims to be filed so long after the cause of action arose. Each case, however, should be determined on its own merits with good cause shown.”
[20]    It is the humble opinion of this Court upon a careful perusal of the proceedings before the Employment Tribunal and relevant documentations before the Competent Officer part of the bundle submitted to this Court on Appeal by the Employment Tribunal, that no such precautionary measures as directed in the above cited case law was exercised by the Competent officer suffice to issue an ‘unconstitutional notice’ denying the Respondent the right to be represented by Counsel during mediation and to that end clearly breaching the very provisions of the discretion for extension of time as granted to the Competent Officer at Schedule 1 Part II sub-paragraph 3 thereof.
[21]    Now, it is clear that in view of the notice issued by the Competent Officer to the parties inclusive of the Respondent who was unrepresented at the time, it is logical that the point that the claim of the Appellant at the relevant time was filed well after the 14 days time limit could not have been raised in view of lack of proper legal advice as rightly argued by Learned Counsel for the Respondent. Hence, in that respect this Court does not consider that in the specific circumstances, the Respondent had in fact waived his right to challenge the delay in bringing the grievance. Same is further reinforced by the fact that the Respondent raised the issue at the first available opportunity after obtaining legal representation, before the Employment Tribunal as above-referred and illustrated.
[22]    Article 2224 of the Civil Code (paragraph 14 refers), is clear that a right of prescription may be pleaded at all stages of legal proceedings, even on appeal, ‘subject to waiver’ (paragraph 21 refers), and in this case it is undisputed that the grievance procedure of the Appellant was filed out of time before the Competent Officer as above treated and even endorsed by the Employment Tribunal and hence in view of the justification given by the Respondent non constitutive of a waiver of right on his part. This Court finds it just and expedient to grant him the right to raise the point of law at this stage of the proceedings on appeal and finds further the grievance procedure as initiated by the Appellant before the Competent Officer was grossly time barred and in the absence of any justifications as provided by Schedule 1 Part II of the Employment Act, the Competent Officer ought not to have considered the grievance at all hence the mediation and or any other decisions and or appeals to the Employment Tribunal ought not to have entertained on the ground of prescription. It follows therefore that the decision of the Employment Tribunal in pursuance to the “time barred application of the Appellant before it” is dismissed accordingly ‘ab initio’.
[23]    It is also crucial after having entertained the plea in limine litis as raised by the Respondent before this Court, in order to clear any inconsistencies as it arose in the Employment Tribunal’s Ruling on the plea in limine litis of the 2nd day of June 2015 so as to avoid future misunderstandings and or misinterpretation of the law in respect of prescription as raised in this appeal and upheld by this Court.
[24]    It is apparent that the Employment Tribunal in all its wisdom reasoned as it did vis-à-vis the plea in limine litis on the ground of the Employment Act being a special legislation providing for exceptions to the general substantive law in respect to employment contracts hence the applicability of the general procedural law as to prescription under the Civil Code being inapplicable. Further the notion of prejudice to the other party was also considered by the Employment Tribunal as a prerequisite for applicability of the general procedural law. In the same breath concern was also raised as to Jurisdiction of the Employment Tribunal not being on judicial review of the decision of the Competent Officer.
[25]    With respect to the Learned Magistrate, firstly, the well-known principle of interpretation of “generalia specialibus non derogant” is always applicable in instances where the special law does not preclude same. The right to prescription is a general procedural law provision as enshrined in Article 2224 of the Civil Code and is to be exercised by the aggrieved party “at all stages of legal proceedings” irrespective of the forum (subject of course to contrary provisions in the Employment Act which is non-existent in that respect). Hence, not to have entertained the plea in limine before the Employment Tribunal was erroneous for reasons given for it had no bearing on judicial review applications and or appeals to the Minister. Secondly, as to the issue of prejudice to the other party, this is a common law exception as introduced through case law as cited by the Learned Magistrate in the absence of clear provisions and or clear exceptions provided for by the relevant law. In this instance, the relevant law is Article 2224 of the Civil Code and the only exception provided is as indicated earlier “waiver” and as it has been decided and ought to have been clearly appreciated by the Learned Magistrate that there was no waiver in the specific circumstances of this case on the part of the Respondent.
[26]    On the above basis, it is the humble opinion of this Court that the Employment Tribunal further erred in not entertaining the plea in limine litis as raised by the Respondent before it at first instance for it ought not to have waived its Jurisdictional right to entertain such a plea in limine litis in the absence of clear and unambiguous provisions to the contrary in the Employment Act creating it.
[27]    In the light of the above reasons and clearly illustrated circumstances, I hereby uphold the plea in limine litis as raised by the Respondent and find that the application of the Appellant was time barred before the Competent Officer and hence I set aside the Tribunal’s Ruling of the 15th day of September 2015 accordingly on the basis of prescription.
[28]    It follows that the remaining grounds of appeal which were contingent on the plea in limine litis are redundant as a result and hence remain on file.

 

Signed, dated and delivered at Ile du Port on 29thday of July 2016.


Govinden-J
Judge of the Supreme Court