JA Resorts & Hotels LLC v Damergi (MC 110/2019) [2020] SCSC 474 (26 March 2020)

SUPREME COURT OF SEYCHELLES Reportable [2020] sese ace» MCII0/2019 JA RESORTS & HOTELS LLC (rep. by Olivier Chang Leng) Applicant versus ABEL DAMERGI (rep. by Kelly Louise) Respondent Neutral Citation: Before: Summary: Heard: Delivered: JA Resorts & Hotels LLC v Demergi (MC 110/2019) March 2020). Dodin J Application for leave to file appeal out of time. 20 February 2020 27 March 2020 [2020] SCSC:4-.~7 ORDER The Applicant has very little chance of success on appeal and therefore fails the second limb of the assessment as to whether the appeal should be allowed out of time. The application for leave to file the appeal out oftime is denied. The application is therefore dismissed with costs to the Respondent. RULING DODIN J [1] The Applicant is the judgment debtor in employment case ET24/29 which ruling was delivered by the Employment Tribunal on 5th November 2019. The sum to be paid by the Applicant was to be calculated by the Ministry of Employment which calculated the total judgment debt to be US$12,667.75. [2] It is agreed by both parties that the ruling of the Employment Tribunal reached the parties around the 26th November, 2019, which was outside the 14 days appeal period provided by the Employment !\cl. The Respondent does not therefore take issue and reasonably so, with the application lor leave 011 account of' the late delivery of the ruling of the Employment Tribunal. However, the Respondent objects to the application on account of the grounds of appeal are vexatious and do not disclose an arguable case for appeal. [3] The three grounds Ior appeal me that: 1. The Tribunal erred when it caine to the conclusion at paragraph I J that the Respondent WetS not on annual leave/or the period spanning; 61" August 2018 until 301" November 2018 and that he hod no choice hilt to resign when there was clear evidence to the contrary. 2. The Tribunal erred at paragraph 9 of its judgment when it considered that there I,vas no reason 10 doubt the Applicant's testimony that he was asked to resign when there was several items of documentary evidence that come (Jut at the trial to indicate that he voluntarily resigned upon agreement between the parties. 3. The Tribunal erred when it carne to the determination that the Respondent is due public holidavs when this issue was never canvassed ({I the trial or the matter. nor wos it raised by the Respondent during the same. Accordingly, the Appellant was not afforded the chance to address this claim, nor did the Ministry ofLabour, tmmigration and Civil Status approach the Respondent to identify how 1/10nypublic holidays, if any the Respondent is owed unci that the computation was made arbitrarily. [4] Learned counsel for the Respondent submitted that termination or resignation of the Respondent was never a contentious matter before the Employment Tribunal. The issue of paid leave was considered in dept by the Tribunal which concluded that the Respondent was entitled to paid leave. As to the number of days for public holidays due, learned counsel submitted that it was clear in the evidence that the Respondent had not been able to take any public holidays due to the nature if his work. Since public holidays are prescribed by law and fallon specific days of the year there is no reason why the parties need to be allowed to canvas how many public holidays fall within the specific period of the year in question. [5] Learned counsel submitted that the appeal only serves to deny the Respondent the fruits of his judgment and moved the Court to lind that the grounds of appeal do not disclose any arguable case, are vexatious and have Iittle chance of success on appeal. [6] Learned counsel for the Applicant submitted that the right to appeal is a right enshrined in law and in any event, at this stage this Court should not be considering the merits of the appeal but whether it should be tiled out of time. [7] Since both Applicant and Respondent are in agreement that the ruling and computation were served after the appeal period had elapsed, there is no reason why this Court should not grant the Applicant leave to Jill' the appeal out of time on that account. However, as per the decision of the Court o/Appeui in YVO/1 Dubel & anor v Yvette Juliette & Anor Case NO 1 oj' 2005, there is the second requirement that the Applicant must "show that 011 the appeal (hey have an arguable case and the prospects ofsuccess are good on balance ofprobabilit ies" [8] I have studied the grounds of appeal as reproduced above and I have perused the Ruling of the Employment Tribunal as there are contrasting assertions as to whether the Tribunal gave due consideration to the issues raised. However without the complete records of proceedings, [ cannot determine with certainty what the parties actually stated before the Tribunal. However [ agree with learned counsel for the Respondent that on ground 3 that public holidays are prescribed by law and employment officers ean take judicial notice without the need for the parties to canvas the number of public holidays for the specific period. [9] On the first and second grounds of appeal the Employment Tribunal was very clear as to the scope or its determination at paragraph 3 or the Ruling: "The Tribunal would like first to point out that the issue on unfair dismissal will not be considered by the Tribunal as it is not a ground on which this grievance was lodged. lis such it is outside the remit 0(' this application. The only issue to he considered is whether the Applicant is owed annual leave and public holidays upon the end ofhis contract ofemployment. " [10] I also find that in paragraphs 9 and II 01 the Ruling, the Tribunal merely made observations as to how and when the employment of the Respondent came to an end but made no determination on the same consistent with its pronouncement in paragraph 3 [supra]. [11] Hence on balance of probabilities, r am of the opinion that the Applicant has very little chance of success on appeal and therefore fails the second limb of the assessment as to whether the appeal should be allowed out of time. [12] On that latter ground alone, the application for leave to file the appeal out of time is denied. The application is therefore dismissed with costs to the Respondent. Signed, dated and delivered at lie du Port on 27 March 2020. Dodin J