Public Utilities Company v Savy (CA 23/2020) [2021] SCSC 1002 (29 September 2021)

SUPREME COURT OF SEYCHELLES In the matter between: PUBLIC UTILITIES COMPANY (rep. by S. Rajasundara,) and DAVIS SAVY (unrepresented) r Sb Reportable [2021] SCSC ...0... Arising in CA23/2020 Appellant Respondent Neutral Citation: Before: Summary: Heard: Delivered: PUC v Savy (CA 23/2020) [2021] SCSC .. G.~.~(29th September 2021). Pillay Appeal from Employment Tribunal By way of submissions 29th September 2021 ORDER The Appeal is allowed JUDGMENT PILLAY J [1] The Appellant appeals against the decision of the Employment Tribunal delivered on 5th November 2020 awarding the Respondent the sum of SCR 16, 771.76 after concluding at paragraph 45 of its Judgement that: Having come to the conclusion that despite the fact that we believe the Applicant did show disrespect towards the Respondent's employees, the Respondentfailed to inform the Applicant of the disciplinary offence that he committed. This is a breach of the law and the Applicant is awarded thefollowing: (a) One month's salary in lieu of notice amounting to SR8322; (b) Salary from 20lh May until 4111 of June 2019 amounting to SR 8, 449.76 This is a total ofSR 26, 771.76 [2] The grounds of appeal are as follows: (1) That whilst the Tribunal admits that the Respondent satisfied insubordination, a serious disciplinary offence as per schedule 2 Part II subparagraph (1) of the Employment Act, she erred in holding that the Appellant failed to satisfy section 53 (2) of the same Act when in fact the Learned Vice chair should have instead relied on Section 53(4). application the case law namely Philoe v Sainte Anne Resort (2) The Tribunal's (CA22/20l7) (2019) is irrational and erroneous in that the Tribunal failed to note that the Appellant has fully met all criteria of the Law as regards the termination of the Respondent. of (3) The Tribunal failed to take into account that the Respondent as stated in paragraph 9 the termination letter (A3) stated was based on his gross has clearly admitted that insubordination, thus confirmed the Appellant's due notification. (4) The Tribunal groundfor the Employment Act. failed to appreciate consequently a termination as the same being the serious disciplinary offence as defined in the established insubordination (5) The Employment Tribunal failed to the distinction between the suspension letter and that of the termination provided in the Employment Act. of (6) The Learned Vice Chair erred in not considering the series of events leading to the termination including the investigation, and the suspension letter (which had met the requirements the nature of offence and reasons for termination) and as a result failed to see that the termination letter had simply followed on from these steps as required by the law but summing up the serious disciplinary offence as gross insubordination which had already been explained in detail in the suspension letter. informed the respondent of the law and adequately (7) The Tribunal's decision and award are therefore unlawful. [3] The Appellant submitted that in Savoy Development Limited v Salum [2021} the Court's analysis of section 53, 55 and schedule 2 Part II, concludes that "in instances where disciplinary offence is of a serious nature then the termination justified. If I understand counsel's submissions correctly, he seems to be saying that the Employment Tribunal having found at paragraph 36 that a serious disciplinary offence had been committed then it should have followed that the termination is justified. [4] Counsel went on to submit that the Employment Tribunal having been satisfied that the Respondent committed a serious disciplinary offence was wrong to then conclude that the Appellant failed to satisfy section 53 (2) of the Act. It was his submission that the Appellant could not do anything more to satisfy section 53 (2). [5] Counsel further submitted that the Employment Tribunal was wrong to apply the case of Philoe v Sainte Anne Resort (CA22/2017) (2019) SCSC206 (01 February 2019) to the present circumstances as contrary to the case of Philoe, the Appellant in the current matter did not assume that the Respondent knew what the suspension was about but provided a detailed background on the matters. [6] The Respondent submitted that contrary to the Appellant's statement that he did not refuse to answer the allegations made against him is incorrect. He submitted that he provided the requested explanation dated 2 l " May 2019, within three days of the Appellant's request. [7] It was his submission that the letters dated 21st May 2019 and 221ld July 2019 (being his letter to the Appellant and Mr Baker) were disregarded to protect his superiors. He submitted that the termination letter dated 4th June 2019 remains a doubtful document on the basis of paragraph 42 of the decision of the Employment Tribunal. [8] Inspite of the numerous grounds of appeal, the appeal rests on one point; should a termination letter under section 53 (4) of the Employment Act indicate an offence under schedule 2 Part II? [9] Section 53 ofthe Employment Act provides for disciplinary procedures as follows - I. No disciplinary measure shall be taken against a worker fur a disciplinary offence unless there has been an investigation of the alleged offence or, where the act or omission constituting the offence is self-evident, unless the worker is given the opport unity of explaining the act or omission. 2. Where the disciplinary offence relates to a serious disciplinary the worker shall be informed in writing with copy to the union, offence, ifany, of the nature ofthe offence as soon aspossible after it is alleged to have been committed and ofLhe suspension of the worker, where the employer measure orfor investigative purposes. suspension deems to be necessary as a precautionary 3. The employer shall ensure that the investigation pursuant to subsection (I), even where il consists in no more than requiring an explanation/or a self-evident act or omission, is conducted fairly and that the worker has, if the worker so wishes. representative of the union, may wish to call. the assistance of a colleague or a ifany, and such witnesses as the worker 4. Where a disciplinary a/renee is established. the employer shall decide on the disciplinary measure to he taken and. where such measure is termination without notice. shall writing with copy to the union, ifany. inform the worker of the same in 5. A worker aggrieved by a disciplinary measure taken against the worker may initiate the grievance procedure and under that procedure the burden of proving the disciplinary offence lies on the employer. [10] Schedule 2 (Ss.52 and 55) provides as follows; Part I - Disciplinary Offences A worker commits C/ discipllnary offence wherever the worker fails, without a valid reason. to comply with the obligations connected with the work ofthe worker and more particularly, infer alia where the worker- (. ..) (h) fails to comply with the rules and regulations of the undertaking; Part II - Serious Disciplinary Offences A worker commits a serious disciplinary offence whereever, without a valid reason, the worker causes serious prejudice to the employer's undertaking and more particularly. inter alia. where the worker- (a) ... (I) shows a lack of respect to, insults or threatens a client ofthe employer or another worker whether it be a superior, a subordinate or a colleague. (m) ". [11] According to Burhan J Savoy Development Limited v Salum (MA 249/2020 (arising in CA 1112020)) [2021] SCSC 152 (16 April 2021) A reading of [section 53, 55 and Schedule 2] indicates that the Employment Act provides for disciplinary offences and serious disciplinary offences. As the name the latter category are more serious and have a greater impact on the suggests, In instances where the work and the working relationship between the parties. It is disciplinary offence is of a serious nature then the termination is justified. therefore necessary for this court to determine whether the offence committed by the respondent the dismissal of the respondent. in this case was a serious disciplinary offence to warrant [12] In the case ofPhiioe v Sainte Anne Resort (CA 22/2017) [2019] SCSC 206 (01 February 2019) the letter that the Respondent sent to the Appellant read simply as follows: "Re: Suspension from duty This is to inform you that you are suspended from duty without pay with immediate effect until further notice pending investigations into an incident of 4th December, 2014. You would be contacted in due time for the outcome. " [13] The Court in Philoe looked at the provisions of section 53 (2) and found that "The question is whether the content of the letter [met] the requirement of Section 53(2) in stating the nature of the offence." The Court proceeded to find that "An objective and solitary reading of the letter of suspension does not disclose any offence levelled against the Appellant [since i]t only refers to an incident of 4th December, 2014." [14] In the present case the Respondent was issued with a letter dated 17th May 2019 (marked AI) informing him of his suspension from duty. The letter further went on to detail the issues and concerns about his aggressive attitude and habit of using abusive and vulgar language. The letter concluded with a request for the Respondent to submit a written explanation into an incident whereby he showed lack of respect to his superior officers during a meeting on 16th May 2019. [15] The Respondent answered the suspension letter by way ofa letter dated 2pt May 2019. [16] By letter dated 4th June 2019 the Respondent's employment was terminated on the basis of gross insubordination. [17] The Employment Tribunal at paragraph 41, relying on Philoe found that The above seems to indicate that the suspension letter must indicate an offence under schedule 2 Part II. This would lead to the assumption that so must the termination letter. Unfortunatelyfor the Respondent, this is not evident in their letter of termination to the Applicant. We thereforefind that the requirements of the law have not been made out. [18] Section 53 provides the process for disciplinary procedures to be followed when there is an allegation that a disciplinary offence has been committed. I have to agree with counsel for the Appellant. The requirements for a suspension letter under section 53 (2) cannot be equated to those required under section 53 (4). The suspension letter is one step which is followed by termination letter where a disciplinary offence is established following investigations and a decision made that termination is necessary. [19] Indeed in Philoe there is no indication of the disciplinary offence that the Appellant was supposed to have committed, for which he was suspended. There was only a reference to an incident on a specific date which did not meet the requirements of section 53 (3). [20] On a reading of section 53 (4) I am inclined to agree with the Employment Tribunal that a termination letter must also indicate an offence under Schedule 2 Part II. The termination letter has to be read in conjunction with the suspension letter as they are steps in the disciplinary process. Once the employee is put on notice pursuant to section 53 (2), an investigation is carried out pursuant to section 53 (3) and once the investigation is concluded and a decision taken it is communicated to the employee. It follows therefore that in the event the decision is one for termination the employee must be informed of the offence that has been established as a result of the investigation and the decision taken. [21] In the current matter the Appellant detailed in its letter dated 17th May 2019 various instances of the Respondent's misconduct as well as details of the incident of 16th May 2019. The suspension letter went on to label the Respondent's conduct as "gross insubordination [which] is not acceptable and will not be tolerated any further." The Respondent was requested to send a written explanation. The termination letter dated 4th June 2019 referred to the letter of suspension issued on 17th May 2019 and proceeded to inform the Respondent that he was being terminated for "gross insubordination". [22] The Employment Tribunal having found at paragraph 36 that: Nevertheless, the situation remains that we are of the view that it is moreprobable than not that in the heat of the moment the Applicant did disrespect thepersons in the meeting on that day and did threatened Mr Monty. For us this does satisfy insubordination, as Schedule 2 Part II subparagraphs (1) of the Employment Act reads asfollows: ..(I) shows a lack of respect to, insults or threatens a client of the employer or another worker whether it be a superior. a subordinate or a colleague. " erred in its conclusion that the termination letter did not specify the serious disciplinary offence that the Respondent committed. [23] Having found that the Respondent's actions satisfied insubordination the Employment Tribunal could not make the finding it did at paragraph 38 of the impugned judgment. [24] For the above given reasons I allow the appeal. 7